Spires v. Relco, Inc., 64665

• Decision Date: 04 January 1983
• Docket Number: No. 64665,64665
• Citation: 299 S.E.2d 58,165 Ga.App. 4
• Parties: SPIRES et al. v. RELCO, INC.
• Court: Georgia Court of Appeals

Page 58

299 S.E.2d 58

165 Ga.App. 4

SPIRES et al. v. RELCO, INC.

No. 64665.

Court of Appeals of Georgia.

Jan. 4, 1983.

E. Herman Warnock, McRae, for appellant.

Preston N. Rawlins, Jr., McRae, David H. Pope, Mark A. Kelley, Michael McGlamry, Atlanta, for appellee.

DEEN, Presiding Judge.

Appellants contend that the trial court erred in granting Relco's motion for summary judgment on both the complaint and the counterclaim.

1. The record shows that Relco served requests for admissions that appellants had failed to make certain payments under a lease agreement, that these payments were due and payable under the lease agreement, that Spires had received a copy of a letter dated February 27, 1981, demanding payment and that within ten days after receipt of the letter appellants failed to pay the sum of $10,966.48. As the record indicates that these requests for admissions were never answered, they are deemed to be admitted, Code Ann. § 81A-136; Taylor v. Hunnicutt, 129 Ga.App. 314, 199 S.E.2d 596 (1973), and the trial court did not err in granting Relco's motion as to the complaint.

2. Relco's motion for summary judgment was accompanied by the supporting affidavit of Relco's president which set forth the appellant's failure to pay under the lease agreement. Appellants filed an amended answer and amended counterclaim which was verified by Spires as "true to the best of his knowledge and belief." In the body of the pleading he sets forth facts which he labels as his third and fourth defense and these defenses are incorporated in the counterclaim which seeks damages for misrepresentations and cancellation of the lease agreement.

"It is basic that unsworn allegations are not evidence; nor do they rise to that level when accompanied by an affidavit, made not upon personal knowledge, but upon the best of [affiant's] knowledge, which is just a variation of our old friends 'information and belief.' [Cits.]" Heavey v. Security Management Co., 129 Ga.App. 83, 84, 198 S.E.2d 694 (1973). The requirement of personal knowledge, however, may be met where the contents of the pleading indicate that material parts of it are statements within the personal knowledge of the party. Holland v. Sanfax Corp., 106 Ga.App. 1, 126 S.E.2d 442 (1962). As in Foskey v. Smith, 159 Ga.App. 163, 283 S.E.2d 33 (1981), wherein verified pleadings were filed in response to a motion for summary judgment, the allegations sworn to by Spires were indicated to be within his personal knowledge and were not merely generalized denials or conclusions.

As the pleadings were verified, the question remains as to whether the allegations could withstand a parole evidence challenge when Spires' sworn statements pertain to promises of service, training, etc. which he claims were offered as an inducement to get him to sign the contract although such promises were not made a part of the contract and the contract provides that the "lease is the entire agreement between the parties and cannot be modified, amended, supplemented or rescinded except by a writing signed by the parties." Under Code Ann. § 38-501 "parole contemporaneous evidence is admissible generally to contradict or vary the terms of a valid written instrument." "The rule that parole agreements shall not be received to change or add to the terms of a written contract does not apply where the alleged contract was procured by fraud. A stipulation in a contract that the provisions thereof constitute the sole and entire agreement between the parties and that no modification thereof shall be binding on either party unless in writing and signed by the seller can have no bearing in a case where fraud to induce the contract is at issue. [Cits.]" Kimbrough v. Adams, 65 Ga.App. 536, 538, 16 S.E.2d 96 (1941). The decision in Kimbrough, supra, has been modified by subsequent case law. Alpha Kappa Psi Building Corp. v. Kennedy, 90 Ga.App. 587, 591, 83 S.E.2d 580 (1954), involved a contract for sale and the buyer alleged that certain misrepresentations by the seller induced him to enter into a contract which stipulated that the written contract was the entire...