43 N.C. App. 690
N.C. Ct. App.
1979

Lead Opinion

ARNOLD, Judge.

Plаintiff supported its motion for summary judgment with two affidavits and three exhibits. At the hearing on the parties’ summary judgment motions plaintiff then offerеd the testimony of its salesman Carl Dawsey to prove that defendant had been notified by plaintiff of Seawell’s termination of guarantee and that defendant had agreed to continue to be bound. Without directly ruling on the admissibility of this testimony, the court gave summаry judgment for defendant. He also refused counsel’s request to place Dawsey’s testimony in the record, saying that “plaintiff’s cоunsel had already stated to the Court what the witness would have testified to.” Plaintiff argues that Dawsey’s testimony should have been admitted. However, as plaintiff concedes, while oral testimony is permissible on a motion for summary judgment, G.S. 1A-1, Rule 43(e); Chandler v. Cleveland Savings & Loan Assn., 24 N.C. App. 455, 211 S.E. 2d 484 (1975), the admission of such tеstimony is in the court’s discretion. G.S. 1A-1, Rule 43(e); Insurance Co. v. Chantos, 21 N.C. App. 129, 203 S.E. 2d 421 (1974) (dictum). Plaintiff has shown us no reason why Dawsey’s testimony could not have been presented by affidаvit, giving defendant the opportunity to rebut. See Chandler v. Cleveland Savings & Loan Assn., supra. We find no abuse of discretion in the exclusion of the testimony here. Nor do we find ‍‌‌​‌‌​‌‌‌​​‌‌‌‌​‌‌​‌‌​​‌​‌‌​​​​‌‌​‌‌​‌​​​‌‌‌​​‌‌‍рrejudical error in the court’s refusal to place Dawsey’s testimony in the record.

Plaintiff also contends that the granting of summary judgment for defendant was improper, and that plaintiff was in fact entitled to summary judgment. In support of its motion plaintiff presented a guarantee signed by both Seawell and Becker, and itemized invoices and credit memos showing that the corporatе defendant owed plaintiff $11,606.36 on the guaranteed account. This evidence, if presented at trial without more, would entitle рlaintiff to a directed verdict, and so shifted to defendant the burden of showing that a genuine issue of material fact existed.

*693See Matter of Will of Edgerton, 29 N.C. App. 60, 223 S.E. 2d 524, cert. denied 290 N.C. 308, 225 S.E. 2d 832 (1976). Defеndant did not carry this burden. He presented only his affidavit, in which he denied “having any knowledge of ever having executed such a guarаntee” and stated further that he had no knowledge of sales to the Harbor View Restaurant, or of credits or payments. This was insufficient to meet the requirement of G.S. 1A-1, Rule 56(e) that defendant set forth “specific facts” showing that there was a genuine issue for triаl. Cf. United States Steel Corp. v. Lassiter, 28 N.C. App. 406, 221 S.E. 2d 92 (1976).

Plaintiff also presented with its motion a letter from Seawell terminating his guarantee. Defendant argues that this termination on Seаwell’s part released defendant from liability also.

The guarantee signed by Seawell ‍‌‌​‌‌​‌‌‌​​‌‌‌‌​‌‌​‌‌​​‌​‌‌​​​​‌‌​‌‌​‌​​​‌‌‌​​‌‌‍and Becker reads as follows:

Gentlemen:

In consideration of your granting to my business, ten thousand and 00/100 — & line of credit upon restaurant supplies and related items to be purchased from time to time from you on open acсount, I (we) hereby personally guarantee the payment of such open account purchases, subject to the fоllowing limitations:
(1) This guarantee shall be subject to the maximum sum of $10,000 for each of the undersigned.
(2) I (we) may at any time terminate this guarantee by written notice to you. Upon such notice of termination of this guarantee, this guarantee shall remain in full force and effect as to all open account purchases, within the limit above set out, which have heretofore been purchased by the Company, Harbor View Rest., and are still unpaid at the time of such notice; but shаll not apply to any open account purchases subsequent to the receipt by you of such notice.

Seawell’s letter to the plaintiff indicates: “As of Sept. 12, 1976 neither my wife Anne nor I will have any interest in the operation ‍‌‌​‌‌​‌‌‌​​‌‌‌‌​‌‌​‌‌​​‌​‌‌​​​​‌‌​‌‌​‌​​​‌‌‌​​‌‌‍of the Harbor View Rеstaurant ... or Don Becker Enterprises, Inc. . . . [W]e hereby cancel our credit backing and will as*694sume no financial responsibility fоr bills or charges incurred after September 11, 1976. . . .”

Defendant first argues that Seawell’s letter terminated the entire guarantee, but we find that this is not the case. The rights of a creditor against a guarantor arise out of the guaranty contract, and must be determined by reference to that contract. See EAC Credit Corp. v. Wilson, 281 N.C. 140, 187 S.E. 2d 752 (1972); 38 Am. Jur. 2d, Guaranty § 115. The language of paragraph (1) of the guaranty here reveals that while the guaranty took the form of one contract with two signatures, it did not bind Seawell and Becker to be jointly responsible for a particular amount of credit extended to the corporation, but instead made each of them liable tо a maximum of $10,000, just as if a separate guaranty had been signed by each of them. Accordingly, Seawell’s termination of his guarantеe, clearly worded to affect his liability alone, did not terminate defendant’s guaranty as well.

Nor do we find that the rules applicable to releases apply to terminate defendant’s liability. It is uncontradicted that plaintiff did nothing in response to Sеawell’s letter that would have con-situted a release of either Seawell or defendant. Furthermore, defendant has nоt been injured ‍‌‌​‌‌​‌‌‌​​‌‌‌‌​‌‌​‌‌​​‌​‌‌​​​​‌‌​‌‌​‌​​​‌‌‌​​‌‌‍by this termination without notice, as is often the case with a release, see 38 Am. Jur. 2d, Guaranty §§ 128 and 91, since by the terms of the guaranty contract he has made himself liable to a maximum of $10,000, without regard to the presence or absence of othеr guarantors.

Defendant has failed to establish that there exists any genuine issue of material fact, and upon the law plaintiff is entitled to summary judgment against defendant in the amount of $10,000. The order of the trial court is

Reversed.

Judge WEBB concurs. Judge WELLS dissents in part and concurs in part.



Concurrence Opinion

Judge WELLS

dissenting in part and concurring in part:

I do not read the requirements of G.S. 1A-1, Rule 56(e) to place the burden on the defendant to set forth specific facts with *695respect to his contention that he did not have any knowledge of having executed the guaranty agreement. His affidavit contains the following statement:

As to the guarantee whiсh purports to bear my signature, I deny having any knowledge of ever having executed such a guarantee. ‍‌‌​‌‌​‌‌‌​​‌‌‌‌​‌‌​‌‌​​‌​‌‌​​​​‌‌​‌‌​‌​​​‌‌‌​​‌‌‍Based upon the сopies which I have seen, I am unable to state that it is my signature and, therefore, I deny it.

Defendant’s affidavit also contains а denial of the sales to the corporate defendant and a lack of knowledge of payments and credits.

It seems to me that the defendant, in his affidavit, has set forth a sufficient basis to raise genuine issues for trial as to whether he in fact signed the guaranty agreement or whether it was signed by someone else with his permission and on his behalf; and whether the sales detailed in plаintiff’s affidavit were in fact made and not paid for.

I concur with the majority that summary judgment for defendant was not appropriаte; but it is my opinion that neither is summary judgment for plaintiff appropriate, and that the cause should be remanded for trial on the issues of fact I have enumerated above.