Opinion
October 6, 1980.
The case was submitted on briefs.
Toni G. Wolfman for the defendants.
Enid M. Starr Edward E. Kelly for the plaintiff.
The defendant claims to be aggrieved by the allowance of the plaintiff's motion for summary judgment. We conclude that there was error.
The moving party must demonstrate "that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). See Community Natl. Bank v. Dawes, 369 Mass. 550, 554 (1976). The instant case resembles Community Natl. Bank only to the extent that the plaintiff seeks to recover on promissory notes. Contrary to the situation in that case, the present defendant, by the affidavit of its treasurer (and one who is personally sued as guarantor), has demonstrated at least one triable issue, namely, whether there has been an oral modification of the original loan agreements. The parol evidence rule does not bar such evidence of a subsequent modification. Cummings v. Arnold, 3 Met. 486, 489 (1842). The defendant's affidavit is clear and unambiguous. Contrast Royal Bank of Canada v. Connolly, 9 Mass. App. Ct. 905 (1980). The order allowing the plaintiff's motion for summary judgment and the judgment are reversed.
So ordered.