Giant Peanut Co. v. Carolina Chemicals, Inc.
| Decision Date | 25 September 1973 |
| Docket Number | No. 48368,No. 3,48368,3 |
| Citation | 200 S.E.2d 918,129 Ga.App. 718 |
| Parties | , 13 UCC Rep.Serv. 754 GIANT PEANUT COMPANY v. CAROLINA CHEMICALS, INC |
| Court | Georgia Court of Appeals |
Rembert C. Cravey, McRae, for appellant.
Jones & Rountree, George N. Rountree, Alma, for appellee.
Syllabus Opinion by the Court
Plaintiff, Carolina Chemicals, Inc., brought an action on account against the defendant, Giant Peanut Company for the purchase price of various agricultural chemicals allegedly sold and delivered and accepted by the defendant. Defendant answered, denying all material allegations of the complaint. Plaintiff moved for a summary judgment in the amount of $10,550.95. On the hearing, plaintiff relied upon a discovery deposition of the president of the defendant company taken by the plaintiff, which related primarily to examination in reference to various invoices and delivery receipts, as to which the testimony of the defendant president was to a very great degree vague, indefinite, equivocal and evasive. In the deposition he also testified the balance of the account was not over $1,000, and that the agreement between the parties was to the effect that no payments on the account were due until defendant had collected from its customers that purchased the items sold by plaintiff to defendant. Plaintiff also relied upon an affidavit of its president and its delivery man as to the correctness of the invoices and delivery tickets, and the statement of account showing charges and credits. The defendant tendered in evidence the affidavit of its president reiterating the agreement that payment to the plaintiff was to be made when payment was received from defendant's customers, 'less an agreed commission for the defendant,' and that There was no evidence in denial of the existence of such agreement.
The trial judge granted the plaintiff's motion for summary judgment, basing his conclusions on (1) construction of the defendant president's testimony most strongly against the defendant relying on Chandler v. Gately, 119 Ga.App. 513, 519, 167 S.E.2d 697; and (2) on the ground that the 'defensive assertion that the goods were not to be paid for until the defendant sold and collected for them, is in contravention of' Code § 109A-2-201(1), relating to parol contracts of sale. Held:
1. All evidence and materials submitted on motion for summary judgment, including the testimony of the parties, must be construed most strongly against the movant Burnett Ford, Inc. v. Hayes, 124 Ga.App. 65, 67, 183 S.E.2d 78 in which Chandler v. Gately, 119 Ga.App. 513(3), 167 S.E.2d 697 was held to be 'no longer . . . binding authority on this court') insofar as the rulings therein relate to the construction of the testimony of the opposing party in a motion for summary judgment. If there be a conflict or contradiction in the testimony of the opposing party it must be construed in his favor, and such contradictions, at the most, may themselves create a conflict in the evidence as well as a question of credibility, which is solely for the jury. See Mathis v. R. H. Smallings & Sons, Inc., 125 Ga.App. 810, 189 S.E.2d 122; Brown v. Sheffield, 121 Ga.App. 383, 388-389, 173 S.E.2d 891.
2. Code § 109A-2-201(1) does not prohibit the setting up, by parol, of the defendant's defense here asserted by its president's testimony as to when payments on the account became due. The contract of sale is asserted by the plaintiff in the action brought and admits that a contract exists; the testimony of the defendant president shows that a contract for sale exists. Cod...
To continue reading
Request your trial
-
Lewis v. Hughes
...366 F.Supp. 959, 966 (S.D.Ill.1973); Hale v. Higginbotham, 228 Ga. 823, 188 S.E.2d 515, 517 (1972); Giant Peanut Co. v. Carolina Chemicals, Inc., 129 Ga.App. 718, 200 S.E.2d 918, 920 (1973); Garrison v. Piatt, 113 Ga.App. 94, 147 S.E.2d 374, 375-76 (1966); Quad County Grain, Inc. v. Poe, 20......
-
Prater v. American Protection Ins. Co.
...See Davis v. Holt, 105 Ga.App. 125, 123 S.E.2d 686; Cates v. Cates, 217 Ga. 626, 630, 124 S.E.2d 375; Giant Peanut Company v. Carolina Chemicals, Inc., 129 Ga.App. 718(1), 200 S.E.2d 918; Mathis v. R. H. Smallings & Sons, Inc., 125 Ga.App. 810, 139 S.E.2d 122. The question here is whether o......
-
Tri-Cities Hospital Authority v. Sheats
...testimony of the same witnesses, whether parties or not, does not alter the result. (Cits.)" See Giant Peanut Co. v. Carolina Chemicals, Inc., 129 Ga.App. 718, 720, 200 S.E.2d 918 (1973); see also General Trailer Services, Inc. v. Young Engineering, Inc., 149 Ga.App. 721, 256 S.E.2d 35 (197......
-
J. C. Penney Cas. Ins. Co. v. Williams
..."create a conflict in the evidence as well as a question of credibility, which is solely for the jury." Giant Peanut Co. v. Carolina Chemicals, 129 Ga.App. 718, 720, 200 S.E.2d 918, 920. Plaintiff's evidence of being struck by a black 1977 auto, bearing license LDS 435, driven by a man dres......