Opinion
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Folger & Folger by Larry W. Bowman, Mount Airy, for plaintiff-appellee.
Franklin Smith, Elkin, for defendant-appellant.
MORRIS, Judge.
In the judgment entered, the court complied with the mandate of G.S. 1A--1, Rule 54(b), in providing that 'this judgment is entered as a final judgment under Rule 54(b) of the North Carolina Rules of Civil Procedure in that there is no just cause for delaying the entry of this order.'
[28 N.C.App. 241] A party moving for summary judgment '. . . must show (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law.' Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). '(A)ll inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion.' 6 Moore's Federal Practice (2d ed. 1971), § 56.15(3) at 2337. Nor does G.S. 1A--1, Rule 56, authorize the court to find the facts and decide an issue of fact. The court is authorized only to determine whether a genuine issue as to any material fact does exist. Here we do not think a genuine issue exists with respect to a material fact. Defendant has testified that the bank agreed to set up a reserve account, that the notes would be used only as security for the floor plan agreement, that no demand for payment of the notes would be made until after the bank's remedies under the floor plan agreement and other security instruments had been exhausted, that the cars floor planned would stand good for the debt to the extent of their fair market value, that the dealer reserve would be used to pay off the notes before the bank would demand payment without defendant's having the opportunity either to pay the interest or renew the notes. However, if such verbal agreements were made, they were made, according to defendant's own statement, with Mr. Rector. It is undisputed that Mr. Rector retired from the bank in 1966. The notes involved here were dated in 1973 and 1975. Defendant relies on Langston v. Brown, 260 N.C. 518, at 520, 133 S.E.2d 180, at 181 (1963), where the Court said:
'If, at the time of the execution and delivery of the notes, the parties agreed that payment should be enforced only by a sale of the collateral, such an agreement would preclude personal liability on the part of the maker in an action between the parties, but this is a defense which must be interposed by answer unless it appears in the complaint itself.' (Citations omitted.)
Here, of course, defendant did not raise the defense in his answer, nor is that material here. The undisputed evidence is that if an agreement was made, it was made with Mr. Rector prior to 1966. There is no evidence of any such agreement at the time the notes in question were executed and delivered. Nor does the case before us come within the ambit of Borden, Inc. v. Brower, 284 N.C. 54, 199 S.E.2d 414 (1973). There the plaintiff[28 N.C.App. 242] brought action to recover the balance due on a note executed by defendant on 25 July 1969 bearing a specified due date of 1 December 1969. Defendant denied any indebtedness to plaintiff and by way of affirmative defense averred that the amount included certain notes of customers of plaintiff and defendant payable to plaintiff which had been run through defendant's books as a matter of convenience; that in 1963, an agent of plaintiff had sold the customers fertilizers though defendant had told the agent he could not carry an account that size; that the agent had agreed that plaintiff would be solely responsible for collecting the accounts but they would be merely carried on defendant's books as a bookkeeping entry. Defendant agreed to this, and each year in settling with plaintiff, the notes were included in defendant's account with plaintiff; that each year defendant gave plaintiff a note for the balance due after all transactions between plaintiff and defendant had been handled. The trial court allowed plaintiff's motion for summary judgment. We affirmed. In reversing this Court and remanding the case for trial, the Supreme Court noted at page 65, 199 S.E.2d at page 422, that:
'The original note in this case given by defendant to plaintiff was renewed from time to time. Defendant offered evidence, which was stricken, that each renewal contained the amounts of the Parrish and Scott notes. If this is true, the renewals did not operate as a discharge of the original note. Plaintiff would be bound by the parol contemporaneous agreement made with defendant through plaintiff's agent at the time of the original note as to the mode of payment of the liability of defendant.' (Citations omitted.)
The notes before us are demand notes. There is no evidence that they are renewal notes for the notes given at the time an agreement was entered into with Mr. Rector. On the contrary, defendant says they were given for the purpose of acquiring money with which to buy used cars.
The notes provide that should the bank deem the collateral insufficient, it could demand that defendant deposit additional collateral and, upon his refusal, could declare the notes due and collectible. They further provided that 'upon the nonpayment of this note, or of any other of said liabilities, the said Bank, or the holder thereof, may sell the same (Collateral) at public or private sale . . ..' By the terms of the note the bank is not required to sell the automobiles before calling on the maker for payment. Borden, supra, states that parol evidence, [28 N.C.App. 243] in some instances, may be admissible as to an agreement between the parties 'so far as it is not inconsistent with the express terms of the note.' Here the evidence of defendant that the bank Must apply the fair market value of the cars to the note before calling upon defendant for payment is inconsistent with the terms of the note.
Defendant in his affidavit states that 'I Am informed that my dealer reserve at the North Carolina National Bank would be in excess of $17,000, and more than enough to pay off all the notes that I had Endorsed at the North Carolina National Bank.'
This statement would, of course, not be admissible in evidence. Even so, defendant relates the balance as being more than sufficient to pay customer's notes Endorsed by him. This was the purpose of the reserve account according to all the evidence.
Affidavits filed in opposition to a motion for summary judgment 'shall set forth such facts as would be admissible in evidence . . ..' G.S. 1A--1, Rule 56(e). If the matters stated in pleadings, affidavits, and depositions are not admissible in evidence, they should be stricken and not considered by the court. In this case, when this has been done, there does not remain a genuine issue of material fact. Defendant has admitted the execution of the notes. Plaintiff has established a prima facie right to payment. Defendant has not shown, by competent admissible evidence, a valid defense to the payment allegedly due. The court correctly entered summary judgment for plaintiff.
Defendant, on the day of hearing, filed a motion praying that the court disqualify himself because of the court's alleged 'prejudice and bias toward the defendant' resulting from an other than amicable termination of attorney-client relationship between the court and defendant's family and further because the court is a depositor with plaintiff and enjoys friendly relationships with its officers and employees. The court entered an order denying the motion. He found as facts that the relationship of attorney and client prior to his being elected district court judge ended amicably; that he did prosecute defendant when he was the duly elected solicitor of Mount Airy Recorder's Court but that it was his duty to prosecute all persons charged with violation of the criminal law and he had no personal feelings about the case at all; that he and his wife had funds on [28 N.C.App. 244] deposit with plaintiff in a joint account and that he does enjoy the friendship of certain officers and employees of plaintiff but his impartiality in any decision to be made in the case would not be affected by either the fact of the funds on deposit or his friendship with officers and employees of the plaintiff. We fail to find prejudicial error in this facet of defendant's appeal. Obviously a judge who has formerly been a solicitor or prosecutor will have litigants before him who have previously been defendants on his criminal docket. Without more, this is not sufficient to require disqualification. Nor is the fact that the judge is a depositor in a bank which is a party to an action before him, standing alone, sufficient to require disqualification. The court found as a fact that he had no prejudice or bias which would prevent his acting impartially. We assume, of course, that the court is a person of high integrity and will act impartially in the determination of any controversy before him. Nothing in this record has convinced us otherwise. While the judgment entered might be construed to indicate a misconception of the office of summary judgment, the record does not indicate a lack of integrity or impartiality. Defendant's assignment of error as to this portion of his appeal is overruled.
The court's action in entering summary judgment for plaintiff is
Affirmed.
VAUGHN and MARTIN, JJ., concur.