Watkins Products, Inc. v. England
| Decision Date | 11 January 1971 |
| Docket Number | No. 3,No. 45688,45688,3 |
| Citation | 123 Ga.App. 179,180 S.E.2d 265 |
| Parties | WATKINS PRODUCTS, INC. v. Elbert M. ENGLAND et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. To prove that one received a certain letter from another the evidence must show the letter: (1) was written; (2) was properly addressed to the party; (3) contained the correct postage; and (4) was duly mailed in the United States Post Office. Such evidence as to each of the above must be introduced in order to create a presumption that the letter was received.
2. On summary judgment, an affidavit must show positively that the affiant is competent to testify as to the matters contained in said affidavit.
3. The positive allegations of the defendants' answer, as well as the pleadings of the plaintiff, must be overcome in order for the plaintiff in moving for summary judgment to be entitled to judgment as a matter of law. The burden of proof always lies with the movant for summary judgment and this burden must be carried by movant before the opposing party is required to refute the evidence submitted by the movant.
The plaintiff, Watkins Products, Inc., in County 1 sued England and two sureties for $1572.17 with interest from December 5, 1968, based upon an extension of credit agreement to England, as the purchaser of Watkins products. In the same count plaintiff also sued the two sureties guaranteeing payment of said indebtedness; and in Court 2 sued for $119.80 with interest thereon from December 5, 1968.
It is noted that the extension of credit agreement authorized and contemplated the additional purchases. At the expiration of the agreement, the purchaser promised after 30 days thereof to pay the seller the remaining unpaid indebtedness, and was allowed to return any goods purchased from seller which were in salable condition. The sureties likewise agreed to pay all indebtedness to the seller thereafter incurred.
The defendants answered, denying, in the main, all the allegations of indebtedness and by way of further answer contended: (1) plaintiff repudiated the agreement by failing to give England proper credit for payments; (2) plaintiff refused and continually refused to accept returnable, salable goods, and has failed to give defendant England 'credit for same amounting to more than $1000'; and (3) the sureties were released when plaintiff repudiated the agreement with defendant England and 'they were automatically released in September, 1968, when the plaintiff changed the agreement with England.' Based upon the above, England affirmatively prayed for an accounting, and the sureties prayed that they be dismissed.
The plaintiff requested defendant England to answer certain interrogatories in reference to payment and return of merchandise which were answered generally. Plaintiff also filed a request for admissions that an unsigned agreement attached 'is a true copy of the agreement entered into between the parties' and 'except for possible credit for merchandise that could have been returned * * * the amount is justly due and owing of said defendants.' The defendants answered the request for admissions stating that they could not 'stipulate or admit anything before pretrial.'
The plaintiff filed a motion for summary judgment, which was denied after a hearing. The appeal is from that judgment.
Kenyon, Gunter, Hulsey & Sims, William B. Gunter, Samuel L. Oliver, Gainesville, for appellant.
Jack C. Bell, Gainesville, for appellees.
Plaintiff's motion for summary judgment alleges that a certain letter dated December 5, 1968, was sent by F. J. Kinzie, as collection manager of Watkins Products, Inc. to Elbert M. England, advising him of his right to return merchandise within 30 days.
Paragraph 4 of the motion for summary judgment alleges:
'That Elbert England did not return any merchandise within the period aforementioned, nor has he returned merchandise at any subsequent date.'
The defendant's answer alleged that he had attempted to return more than $1,000 worth of salable merchandise in question to the seller. It is noted that the affidavit refers to the return of merchandise after December 5, 1968, not before.
First of all, the movant for summary judgment completely failed to prove the mailing of a letter to the defendant so as to create a presumption that same was received. The law requires proof that the letter be placed in an envelope properly addressed, with postage affixed thereto, and posted. See National Bldg. Assn. v. Quin, 120 Ga. 358(3), 47 S.E. 962; Bankers Mutual Cas. Co. v. Peoples Bank of Talbotton, 127 Ga. 326(2), 56 S.E. 429; First National Bank v. Carmichael, 198 Ga. 309, 315, 31 S.E.2d 811; Rawleigh Medical Co. v. Burney, 25 Ga.App. 20(1), 102 S.E. 358; Ninth District A & M v. Wofford Power Co., 37 Ga.App. 271(3), 139 S.E. 916; Sullivan Enterprises v. Stockton, 118 Ga.App. 542, 546, 164 S.E.2d 336.
Next, although movant had not shown that it had given the defendant a notice of his right to return salable merchandise, the motion for summary judgment positively alleges 'Elbert England did not return any merchandise within the period aforementioned, nor has he returned merchandise at any subsequent date.' The affidavit fails to 'show affirmatively that the affiant is competent to testify to the matters stated therein,' and thus fails to comply with Section 56, CPA (Ga.L.1966, pp. 609, 660; Code Ann. § 81A-156(c)) as to evidence under motions for summary judgment. Hancock v. Hancock, 223 Ga. 481, 487, 156 S.E.2d 354; Chandler v. Gately, 119 Ga.App. 513(1-a), 167 S.E.2d 697; Nevels v. Detroiter Mobile Homes Inc., 120 Ga.App. 60, 169 S.E.2d 716. Absolutely nothing is shown therein as to how many agents said corporation employed who were authorized to receive returned merchandise, or how many agencies or receiving stations it owned and operated for that purpose, nor the location of same, and thus as to whether or not the defendant returned merchandise is beyond the...
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...since the issues raised by the fourth and sixth defenses have not been removed from the case. As we said in Watkins Products, Inc. v. England, 123 Ga.App. 179(3), 180 S.E.2d 265: 'The positive allegations of the defendants' answer . . . must be overcome in order for the plaintiff in moving ......
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