Opinion
27200.
SUBMITTED MAY 9, 1972.
DECIDED JUNE 15, 1972.
Cancellation. Clayton Superior Court. Before Judge Banke.
Johnson Johnson, S. D. Johnson, for appellants.
Hunt, Stern Daily, F. Hunt Rose, Edwin F. Hunt, for appellees.
Nothing appearing to controvert the provisions of the written contract relied upon by the defendants as controlling to pierce the claim of the plaintiffs, the trial judge did not err in granting summary judgment for the defendants.
SUBMITTED MAY 9, 1972 — DECIDED JUNE 15, 1972.
This is an action by Emma and Emmett Stewart against Jim Walter Homes, Incorporated, and Mid-State Homes, Incorporated, seeking monetary damages, the cancellation of a security deed, injunctive and other relief. The plaintiffs appeal the grant of a summary judgment for the defendants.
The petition is summarized as follows: In January, 1970, the plaintiffs contracted with Jim Walter Homes through a representative, name unknown to them to build a house on land owned by Emma Stewart, to be completely finished on the outside, this defendant to furnish all materials to complete the inside, the plaintiffs to provide the labor. After demand this defendant failed and refused to furnish materials to complete the inside. A representative of this defendant, name unknown, told the plaintiffs they would not have to make any payments on the house until this defendant furnished the materials for the inside. When they signed the contract with Jim Walter Homes only one person was present, but later there appeared on record in Clayton County a security deed, copy attached to the petition, purporting to show their signatures, and purportedly witnessed by two individuals, one purporting to be a notary public. This deed is a forgery in that this defendant or its agents altered it or changed its meaning. It is forged or fraudulent because the plaintiffs did not appear before either witness and execute any note, deed to secure debt, or other instrument, they were never advised they were executing a security deed, and the document which purports to bear their signatures was never presented to them, explained to them, or signed in the presence of the purported witnesses, and they never signed anything in the presence of any witnesses as listed on the deed. The deed was altered after it was purportedly signed by them. This defendant assigned this purported security deed to Mid-State Homes in violation of the representation that no payments would be required until Jim Walter Homes furnished the materials to complete the inside of the house. Both defendants failed and refused to furnish these materials. In October, 1970, the defendant Mid-State Homes advertised the plaintiffs' property for sale under the security deed, and on November 2, 1970, it was bid in at the sale by Jim Walter Homes, and by a purported deed under the power of sale Mid-State Homes conveyed the property to Jim Walter Homes.
The petition includes further allegations to the effect that the two defendants are in reality a single entity, and that they connived, colluded, and conspired to swindle and deprive the plaintiffs of their property.
In answer Jim Walter Homes admitted the contract, but denied that it contained any provisions to furnish materials for the inside of the house, asserting that for this reason this defendant refused to furnish materials for the inside of the house. This defendant alleged that the plaintiffs signed a contract note and the security deed at the home of a relative late at night in the presence of one of the witnesses whose name appears on the deed and who is an agent of this defendant, and authorized the "defendant to add a notarial seal" because they were anxious for work to commence and did not wish to come to this defendant's office during working hours to have the deed notarized. This defendant further asserted that the deed under the power of sale would disclose the purchaser to be Mid-State Homes. This assertion is confirmed by the answer of Mid-State Homes and a copy of the deed in the record.
The sole item of evidence to support the motion of Jim Walter Homes for summary judgment is an affidavit of H. D. Martin, who states he is the regional manager of this defendant who has authority to make an affidavit for use in the present case. In this affidavit he asserts that Jim Walter Homes completed the contract according to its terms, which are shown by a reproduction of the contract attached to the affidavit. He further asserts that no representations were made to the plaintiff that no payments would be due until such time as Jim Walter Homes furnished materials to complete the house. The affidavit also includes, without explanation, a denial that the security deed is forged or altered.
The sole item of evidence to support the motion of Mid-State Homes for summary judgment is an affidavit of Art Knoeller, who states he is the regional manager of this defendant who has authority to make an affidavit for use in the present case. He asserts in this affidavit that Mid-State Homes exercised the power of sale under the security deed assigned to it in strict compliance with the law governing such actions, and that at the time the plaintiffs were in default for monthly payments of $80.30 each, due for June, July, August, and September, 1970.
The plaintiffs submitted no evidence to rebut the affidavits, contending instead at the hearing in the lower court on appeal that the court erred in considering the affidavits, neither of which shows affirmatively that the affiant bases his assertions on personal knowledge of matters which he is competent to testify about.
Under our summary judgment practice a defending party may at any time move for summary judgment, with or without supporting affidavits, and the judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. CPA § 56 (b, c) ( Code Ann. § 81A-156 (b, c)). "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein ... When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." CPA § 56 (e) ( Code Ann. § 81A-156 (e)).
The supporting affidavits, which are not shown to be based on personal knowledge, and which for the most part set forth conclusions as to which it is obvious neither affiant could testify, do not meet the above requirements of CPA § 56 (e), and present nothing of probative value for consideration on motion for summary judgment, except to the extent that Martin, in his affidavit for Jim Walter Homes, submits on behalf of this defendant what purports to be a true reproduction of the contract between the plaintiffs and this defendant, which the plaintiffs in no way purport to rebut. Thus, in considering whether the defendants are entitled to summary judgment we have before us only the pleadings, which include the two deeds, and a reproduction of the written contract itself. The contract in clear and unequivocal language provides for payments of $80.30 monthly commencing on April 5, 1970, and continuing through March 5, 1982, and with two attached exhibits purports to be the entire agreement between the parties. It completely eliminates any basis for a forbearance of payments pending delivery of materials for completion of the interior, or any basis for any claim for materials to finish the interior, or any basis for considering with the writing any oral representation on behalf of Jim Walter Homes to the contrary.
The plaintiffs' petition is ambiguous as to what documents they signed, variously indicating that they did not sign a security deed, or if they signed such a document, that they did not know that it purported to be, or that it was altered, or that if the security deed as recorded was signed, it was not in the presence of the witnesses shown thereon.
It is elemental that between the parties the efficacy of an instrument is not controlled by irregularities in execution, and even if the parties did not execute the document so as to meet the legal requirements of recordation, it purports to do nothing more than accomplish precisely what the plaintiffs had agreed to do under the written contract with Jim Walter Homes, i.e., execute a security deed containing the "customary covenants and conditions." The customary covenants and conditions would include the power of sale as exercised upon default in payment. The contract contains nothing to prevent transfer or assignment, and the plaintiffs having admittedly failed to make any payments under the contract, whether under a mistaken belief as to the terms or for other reasons, they have no cause for complaint if the defendant acted in accordance with the terms of the contract.
In reaching the above conclusions we are not unmindful of the allegations of fraud in the petition, but these bald assertions are not supported by any details to disclose any acts on the part of either defendant to show that either defendant has defrauded the plaintiffs, or that the defendants together have connived, colluded, and conspired to swindle and deprive the plaintiffs of their property. Budget Charge Accounts v. Peters, 213 Ga. 17 ( 96 S.E.2d 887). "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." CPA § 9 (b) ( Code Ann. § 81A-109 (b)).
In our opinion from a review of the entire record it is clear that the plaintiffs' claim cannot be supported in fact and in law unless they can establish a contract which required Jim Walter Homes to furnish materials for the inside of the house, and a forbearance of payments until this was done, and their claim as made is pierced in fact and as a matter of law by the actual written contract, the terms of which are uncontroverted by any evidence in rebuttal.
Judgment affirmed. All the Justices concur, except Hawes, J., disqualified.