Garrison v. Garrison, 8418SC59

• Decision Date: 04 December 1984
• Docket Number: No. 8418SC59,8418SC59
• Citation: 322 S.E.2d 824,71 N.C.App. 618
• Parties: Troy L. GARRISON, Sr. v. Troy L. GARRISON, Jr., Erika K. Garrison, R.D. Douglas, Jr., Trustee, Robert Bruce Gerber, and Barbara Chestnutt (Gerber).
• Court: North Carolina Court of Appeals

Page 824

322 S.E.2d 824

71 N.C.App. 618

Troy L. GARRISON, Sr. v. Troy L. GARRISON, Jr., Erika K. Garrison, R.D. Douglas, Jr.,

Trustee, Robert Bruce Gerber, and Barbara

Chestnutt (Gerber).

No. 8418SC59.

Court of Appeals of North Carolina.

Dec. 4, 1984.

M. Jay Devaney and John P. Daniel, Greensboro, for plaintiff-appellee.

Dees, Johnson, Tart, Giles & Tedder by J. Sam Johnson, Jr., Greensboro, for defendant-appellee.

WEBB, Judge.

At the outset we note that the judgment from which the appeal is taken does not dispose of all the claims and is interlocutory. The Court did not make a finding pursuant to G.S. 1A-1, Rule 54(b) that there is no reason for delay. We hear the appeal within our discretion.

The appellee contends that testimony by Erika K. Garrison that the money advanced by the plaintiff was a gift and it was not intended by the parties that the note be paid is barred by the parol evidence rule. He argues that without this evidence there is not a genuine issue to a material fact and he is entitled to judgment as a matter of law on the note. The resolution of this question depends on whether the testimony of Erika K. Garrison may be considered under the parol evidence rule. The purpose of the parol evidence rule is to give legal effect to the intention of parties to make their written contract a complete expression of their agreement. It prevents the contradiction or variation of the terms of any such agreement. The rule does not come into play until the existence of an enforceable agreement has been shown. See Contracts, by E. Allan Farnsworth, Little Brown and Company, 1982, 7.2 et seq., page 447 for an excellent discussion of the parol evidence rule. Our Supreme Court has said that the terms of an agreement are more likely to be only partially integrated in a promissory note. Borden, Inc. v. Brower, 284 N.C. 54, 199 S.E.2d 414 (1973).

In this case the appealing defendant has testified by affidavit that there was no consideration for the note and that it was a sham. She says in her affidavit that the money was advanced as a gift without any expectation of its being repaid. If this is so there was no consideration for the note and she is not obligated on it. Bank v. Holland, 51 N.C.App. 529, 277 S.E.2d 108 (1981). The note would not be one for an antecedent obligation as contemplated by G.S. 25-3-408 because a gift does not create a legal obligation. Erika K. Garrison has also testified by affidavit that the note was given for plaintiff's tax purposes with no intention that it be repaid. If this is true the note is a sham. If the jury should believe either of Erika K. Garrison's contentions she would not be liable on the note. Neither of them contradict or attempt to vary the terms of the note. Both are based on the theory that the note is of no effect. This evidence is not barred by the parol evidence rule. It was error to grant the plaintiff's motion for partial summary judgment.

The appellee relies on Bank v. Moore, 138 N.C. 529, 51 S.E. 79 (1905); Boushall v. Stronach, 172 N.C. 273, 90 S.E. 198 (1916); Kindler v. Bank, 204 N.C. 198, 167 S.E. 811 (1933); Bank v. Dardine, 207 N.C. 509, 177...