Garrison v. Garrison
Garrison v. Garrison
Opinion of the Court
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 judg
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 plaintiffs 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 nor 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 plaintiffs 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 S.E. 635 (1935); U.S. v. Cahoon, 151 F. Supp. 584 (D.C. N.C. 1957); Bank v. Slaughter, 250 N.C. 355, 108 S.E. 2d 594 (1959); Consolidated Vending Co. v. Turner, 267 N.C. 576, 148 S.E. 2d 531 (1966). We do not believe any of these cases govern. In each of them there was an indebtedness incurred for consideration. The Court in each case held that the payor or debt-
The defendant has also pled the statute of limitations. The note is a demand note made in January 1980. The statute began running at the time it was made. Shields v. Prendergast, 36 N.C. App. 633, 244 S.E. 2d 475 (1978). The action was commenced within three years of the giving of the note and is not barred by the statute of limitations.
Reversed and remanded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.