Misal Const. Co., Inc. v. Rusco Industries, Inc.

• Decision Date: 16 September 1981
• Docket Number: No. 80-713,80-713
• Citation: 403 So.2d 607
• Parties: MISAL CONSTRUCTION COMPANY, INC., a Florida Corporation, Appellant, v. RUSCO INDUSTRIES, INC., a corporation, d/b/a Look Products, Appellee.
• Court: Florida District Court of Appeals

Page 607

403 So.2d 607

MISAL CONSTRUCTION COMPANY, INC., a Florida Corporation, Appellant, v.RUSCO INDUSTRIES, INC., a corporation, d/b/a Look Products, Appellee.

No. 80-713.

District Court of Appeal of Florida, Fourth District.

Sept. 16, 1981.

Mark C. Menser, Fort Lauderdale, for appellant.

Bruce David Green of Levine & Green, P. A., Fort Lauderdale, for appellee.

PER CURIAM.

AppelleeRusco Industries, Inc., sued appellantMisal Construction Company, Inc., in two counts, a) for $2,544.48 due and owing according to an account attached to the complaint and b) for $2,544.48 based upon an account stated.Misal's answer contained a general denial of all the crucial allegations of the complaint except that it admitted having had business dealings with appellee.The answer also contained an affirmative defense of failure of consideration resulting from failure to deliver goods contracted for and furnishing defective and inferior workmanship and materials.The trial court entered summary judgment for Rusco and this appeal ensued.

Rusco filed an affidavit in support of its motion for summary judgment, stating that Misal was indebted to Rusco in the sum of $2,544.48.Thus, while the affidavit is no model it might be sufficient to prove Count I.However, it states nothing in support of the second count, which is based on an account stated.But more importantly the affidavit is insufficient to carry the day because there are answers to interrogatories that show that a genuine issue of fact remains in the case.Rusco filed some 29 interrogatories to Misal which Misal answered in almost monosylabic fashion.The answers would certainly justify a motion to...