Chilson v. P. G. Industries

• Decision Date: 21 October 1959
• Citation: 344 P.2d 868,174 Cal. App. 2d 613
• Court: California Court of Appeals
• Parties: J. CHILSON, Plaintiff and Respondent, v. P. G. INDUSTRIES, Andrew Gyorke, doing business as P. G. Industries, etc., Defendants, P. G. Industries, Appellant. Civ. 23866.

Page 868

344 P.2d 868

174 Cal.App.2d 613

J. CHILSON, Plaintiff and Respondent, v.P. G. INDUSTRIES, Andrew Gyorke, doing business as P. G. Industries, etc., Defendants P. G. Industries, Appellant.

Civ. 23866.

District Court of Appeal, Second District, Division 2, California.

Oct. 21, 1959.

Dennis L. Woodman, Redwood City, for appellant.

Samuel Reisman, Los Angeles, for respondent.

FOX, Presiding Justice.

This is an appeal by defendant P. G. Industries from a summary judgment and from the order granting plaintiff's motion therefor.

Plaintiff brought this action to recover the balance of the purchase price of certain merchandise sold and delivered to the defendant¹ by plaintiff's assignor.The affidavit in support of the motion for summary judgment has attached photostatic copies of the initial invoices and, also, certain credit memoranda representing returned merchandise.The affidavit on behalf of plaintiff states that defendants'contend that although they originally received the merchandise * * * that thereafter they returned a portion thereof other than the items for which credit was given * * * and that they are entitled to additional credits; that plaintiff's assignor has no record of receiving any merchandise returns other than those for which credit has been given * * * and plaintiff's assignor has requested that the said defendants * * * furnish the plaintiff's assignor with bills of lading and receipts signed by plaintiff's assignor in order to verify the aforesaid returns and the receipt thereof by plaintiff's assignor, but the defendants * * * have failed and refused to furnish plaintiff's assignor with any of such purported bills of lading or receipts, and * * * that the defendants * * * have failed to furnish said bills of lading and receipts for the reason that the same do not exist, and that there still remains past due and owing from the said defendants * * * on account of the merchandise purchased from plaintiff's assignor, the * * * sum of $813.24, plus interest at the lawful rate of seven per cent per annum, from and after December 1, 1957.'

The affidavit in opposition was executed by Mr. Gyorke, the sole owner of P. G. Industries.He states that 'a bona fide issue in dispute exists in the above entitled cause * * * in that affiant claims the return of certain merchandise to plaintiff's assignor, for which plaintiff's assignor refuses and continues to refuse, to give additional credit to defendant; * * * that the value of such merchandise returned and the credit claimed is the sum of $828.52; that the properiety of such claim and wrongfulness of plaintiff's assignor in refusing such claim, is the issue to be determined by a trial on the merits of the above entitled action.That affiant, being personally familiar with said matters, is competent to testify thereon, and, if sworn, would so testify.'

'In a proceeding under section 437c, Code of Civil Procedure, issue finding rather than issue determination is the pivot upon which the summary judgment law turns.'Whaley v. Fowler, 152 Cal.App.2d 379, 381, 313 P.2d 97, 98.The affidavits on behalf of the moving party must be strictly construed.Kimber v. Jones, 122 Cal.App.2d 914, 919, 265 P.2d 922.'Because the procedure is summary and presented on affidavits without the benefit of cross-examination, a trial by jury and opportunity to observe the demeanor of witnesses in giving their testimony, the affidavits filed on behalf of the defendant should be liberally construed to the end that he will not be summarily deprived of the full hearing available at a trial of the action and the rights incident thereto.The procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact.'Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 556, 122 P.2d 264, 265.'The facts alleged in the affidavits of the party against whom the motion is made must be accepted as true and they need not be composed wholly of evidentiary...