Pearce Young Angel Co. v. Don Becker Enterprises, Inc. , 43 N.C. App. 690 ( 1979 )

ARNOLD, Judge.

Plaintiff supported its motion for summary judgment with two affidavits and three exhibits. At the hearing on the parties’ summary judgment motions plaintiff then offered 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 summary judgment for defendant. He also refused counsel’s request to place Dawsey’s testimony in the record, saying that “plaintiff’s counsel 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 testimony 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 affidavit, 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 prejudical 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 corporate defendant owed plaintiff $11,606.36 on the guaranteed account. This evidence, if presented at trial without more, would entitle plaintiff to a directed verdict, and so shifted to defendant the burden of showing that a genuine issue of material fact existed.

See 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). Defendant did not carry this burden. He presented only his affidavit, in which he denied “having any knowledge of ever having executed such a guarantee” 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 trial. 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 Seawell’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 account, I (we) hereby personally guarantee the payment of such open account purchases, subject to the following 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 shall 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 Restaurant ... or Don Becker Enterprises, Inc. . . . [W]e hereby cancel our credit backing and will assume no financial responsibility for 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 to a maximum of $10,000, just as if a separate guaranty had been signed by each of them. Accordingly, Seawell’s termination of his guarantee, 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 Seawell’s letter that would have con-situted a release of either Seawell or defendant. Furthermore, defendant has not 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 other 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.