Whitehead v. Capital Auto. Co., 32221

Decision Date07 September 1977
Docket NumberNo. 32221,32221
Citation239 Ga. 460,238 S.E.2d 104
PartiesTroy WHITEHEAD v. CAPITAL AUTOMOBILE COMPANY.
CourtGeorgia Supreme Court

John F. Sheehy, Marietta, for appellant.

Westmoreland, Hall, McGee & Warner, Paul R. Jordan, J. M. Crawford, Atlanta, for appellee. HILL, Justice.

The appellant sued an automobile dealer for specific performance of an alleged contract for the purchase of a new (soon to be discontinued) Cadillac convertible. The dealer's motion for summary judgment was granted by the trial court. The appellant purchaser contends that the dealer did not show that there was no genuine issue as to any material fact as is required by Code Ann. § 81A-156(c).

On motion for summary judgment the dealer filed an affidavit of its sales manager stating that neither he nor any other "authorized" person "accepted any offer" made by plaintiff to purchase such an automobile. The dealer argued, however, that there was no writing sufficient under the Uniform Commercial Code statute of frauds, Code Ann. § 109A-2-201(1), to establish a contract for the sale of goods for the price of $500 or more. The plaintiff had attached to his complaint a copy of his letter purporting to confirm the contract which he apparently mailed to a salesman of the dealer. That letter referred to two other convertible purchases. By affidavit he stated that he was a businessman dealing in the purchase and sale of merchandise, that he had dealt with the dealer previously and that he had a contract for the car in question. He argued that he therefore could enforce the contract as a merchant under the authority of Code Ann. § 109A-2-201(2), 1 an exception to the UCC statute of frauds.

Although both affidavits omit some matters which may be material and they also state conclusions, on motion for summary judgment the burden of establishing the nonexistence of any genuine issue of material fact is upon the moving party. Doubts are to be resolved against the movant even if at trial the opposing party would have the burden of proof, and movant's proof is carefully scrutinized while respondent's proof is treated with indulgence. Ham v. Ham, 230 Ga. 43, 195 S.E.2d 429 (1973); Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 181 S.E.2d 866 (1971). Opinions by the respondent may preclude the grant of summary judgment. Dickson v. Dickson, 238 Ga. 672, 675, 235 S.E.2d 479 (1977). In the case before us the dealer has not met its burden, since a question exists as to whether appellant was a...

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7 cases
  • Lee v. Green Land Co., Inc.
    • United States
    • Georgia Supreme Court
    • February 28, 2000
    ...Laseter v. Brown, 251 Ga. 179, 304 S.E.2d 72 (1983); Krauth v. Bagley, 243 Ga. 87, 252 S.E.2d 504 (1979); Whitehead v. Capital Automobile Co., 239 Ga. 460, 238 S.E.2d 104 (1977); Duval & Co. v. Malcom, 233 Ga. 784, 214 S.E.2d 356 (1975); Anthony v. Morris Hyles, Inc., 221 Ga. 847, 148 S.E.2......
  • Northside Equities, Inc. v. Hulsey
    • United States
    • Georgia Supreme Court
    • July 11, 2002
    ...a movant's evidence is to be carefully scrutinized, a respondent's evidence is to be treated with indulgence. Whitehead v. Capital Auto. Co., 239 Ga. 460, 238 S.E.2d 104 (1977). Applying those standards to the present situation, Hulsey's evidence regarding Greene's level of intoxication, ta......
  • Hill v. Six Flags Over Georgia, Inc.
    • United States
    • Georgia Court of Appeals
    • October 3, 1980
    ...133 Ga.App. 120, 122(4), 210 S.E.2d 240; Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 552-553, 181 S.E.2d 866; Whitehead v. Capital Automobile Co., 239 Ga. 460, 462, 238 S.E.2d 104). Judgment DEEN, C. J., QUILLIAN, P. J., and SHULMAN, BANKE, BIRDSONG, CARLEY and SOGNIER, JJ., concur. SMITH, J......
  • Guest v. Mitchell
    • United States
    • Georgia Court of Appeals
    • December 16, 1980
    ...to be resolved against the movant even if at trial the opposing party would have the burden of proof ..." Whitehead v. Capital Automobile Co., 239 Ga. 460, 461, 238 S.E.2d 104, (1977). As the record before this court does not establish that appellees are entitled to judgment as a matter of ......
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