Walter E. Heller & Co. v. Color-Set, Inc.

• Decision Date: 15 November 1979
• Docket Number: COLOR-SE,INC,Nos. 58526,58527,s. 58526
• Citation: 262 S.E.2d 614,152 Ga.App. 347
• Parties: WALTER E. HELLER & COMPANY v.(two cases).
• Court: Georgia Court of Appeals

Page 614

262 S.E.2d 614

152 Ga.App. 347

WALTER E. HELLER & COMPANY v. COLOR-SET, INC. (two cases).

Nos. 58526, 58527.

Court of Appeals of Georgia.

Argued Sept. 6, 1979.

Decided Nov. 15, 1979.

Richard W. Bethea, Jr., Thomas O. Helton, Chattanooga, Tenn., for appellant.

John Avrett, William Boyett, Dalton, for appellee.

SHULMAN, Judge.

In suit on an alleged breach of contract, defendant appeals the denial of its motion for summary judgment and the grant of plaintiff's motion for partial summary judgment. Since there are issues still pending in the court below, we are without jurisdictional power to review the denial of defendant's motion for summary judgment. Allstate Ins. Co. v. Renshaw, 151 Ga.App. 80(4), 258 S.E.2d 744. However, the grant of plaintiff's motion for partial summary judgment is directly appealable (see Code Ann. § 81A-156(h)) and on that issue, we reverse.

The facts of the case are as follows: Plaintiff-appellee (hereinafter "Color-Set") and defendant-appellant (hereinafter "Heller") entered into a factoring agreement under the terms of which Color-Set assigned all of its accounts receivable to Heller in return for Heller's promise to make advance payments to Color-Set of up to 90% Of the net value of such accounts receivable. The agreement provided that Heller's assumptions of credit risk would "cover only those losses which are due to your (Color-Set's) customers' insolvency or financial inability to pay in respect of approved sales in respect of which the merchandise has been received and accepted by the particular customer, without return and without dispute or claim as to price, terms, quality . . . or any other kind of dispute or claim. If an unadjusted claim or dispute delays the payment of an account when due, our (Heller's) assumption of the credit risk thereon is cancelled and the amount thereof may be charged back to you (Color-Set) . . ."

In summary, when one of Color-Set's accounts (Wedgewood, Inc.) refused to pay for materials furnished by Color-Set (claiming that Color-Set had not provided the bargained-for materials), Heller endeavored to charge back the monies it had advanced Color-Set on Wedgewood's account. Color-Set's new factor indemnified Heller for the monies advanced, and then charged back Color-Set for the amount paid to Heller on Wedgewood's account. Subsequently, Color-Set filed the instant action alleging that Heller is indebted to Color-Set for Heller's charge back of the Wedgewood accounts, in that such charge back was wrongful and in breach of the parties' factoring agreement.

As discussed above, the only issue ripe for review at this time is the grant of plaintiff-appellee's motion for partial summary judgment.

Appellant submits as error the court's grant of such motion, which judgment sustained plaintiff's claim that "under the terms of the factoring agreement dated March 20, 1975 between the plaintiff and defendant, the defendant had no right to charge back accounts to the plaintiff unless a claim or dispute delayed the payment of the account when the same became due . . ."

Appellant argues that the grant of plaintiff's motion was error insofar as the court's judgment implies that defendant could charge back accounts only if on or before the specified invoice due date a claim or dispute was in existence. To the extent the court's judgment is subject to such an interpretation, we must agree with appellant's contentions of error.

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