Tyson v. Henson

159 Ga. App. 684 (1981)

285 S.E.2d 27

TYSON v. HENSON.

62315.

Court of Appeals of Georgia.

Decided September 8, 1981.

Rehearing Denied September 24, 1981.

Margaret N. Dyal, Andrew J. Hill, Jr., for appellant.

Alton M. Adams, for appellee.

BANKE, Judge.

This is an appeal by the defendant from a summary judgment for the plaintiff in a suit on a promissory note. The defendant admitted executing the note and pled no affirmative defense pursuant to Code Ann. § 81A-108 (c). However, he denies liability, contending that the parties understood delivery of the note, which was executed as payment for the plaintiff's interest in an insolvent limited partnership, to be conditional on the firm's attainment of "fiscal health." The note itself calls unconditionally for repayment in specified installments due on specified dates. Held:

1. In the absence of fraud, accident, or mistake, parol evidence is not admissible to vary or contradict the express terms of a promissory note. See, e.g., Cobb Bank & Trust Co. v. Henry, 246 Ga. 225 (271 SE2d 444) (1980); Motz v. National Bank of Ga., 156 Ga. App. 871 (275 SE2d 809) (1981).

2. Although the defendant contends that he can establish a defense of non est factum, he admits executing the note and does not allege that it has been altered in any way. Thus, he clearly has no such defense. See generally Code §§ 20-801; 109A-3-307.

3. Since the defendant has raised no legally cognizable defense, the trial court was correct in granting the plaintiff's motion for summary judgment.

Judgment affirmed. Deen, P. J., and Carley, J., concur.