Opinion
45688.
SUBMITTED OCTOBER 7, 1970.
DECIDED JANUARY 11, 1971.
Action on contract. Hall State Court. Before Judge Smith.
Kenyon, Gunter, Hulsey Sims, William B. Gunter, Samuel L. Oliver, for appellant.
Jack C. Bell, for appellees.
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.
SUBMITTED OCTOBER 7, 1970 — DECIDED JANUARY 11, 1971.
The plaintiff, Watkins Products, Inc., in Count 1 sued England and two sureties for $1,572.17 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 Count 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 pre-trial."
The plaintiff filed a motion for summary judgment, which was denied after a hearing. The appeal is from that judgment.
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 Mut. Cas. Co. v. Peoples Bank of Talbotton, 127 Ga. 326 (2) ( 56 S.E. 429); First Nat. 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, Inc. 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 Sec. 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 (1a) ( 167 S.E.2d 697); Nevels v. Detroiter Mobile Homes, 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, or the location of same, and thus as to whether or not the defendant returned merchandise is beyond the competence and knowledge of the witness. It is the obligation of the movant for summary judgment to show positively the truth of the matters which are essential to a judgment in its behalf, and this it does not do.
Further, the mere allegation in defendant's answer that he had returned salable merchandise for credit, until refuted or contradicted in some manner, establishes in his behalf that he did so. The respondent under a motion for summary judgment has no burden whatever; the burden of proving his right to a summary judgment lies with the movant.
For all of the reasons above, the lower court did not err in denying the motion for summary judgment.
Judgment affirmed. Deen, J., concurs Hall, P. J., concurs specially.
I concur with the holding that the trial court did not err in denying the motion for summary judgment for the reason that there is a genuine issue of whether the principal defendant received the letter.
I do not concur with the other language in the opinion to the effect that an affidavit must formally recite that it was made on personal knowledge. This is contrary to the holding in Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 264 ( 174 S.E.2d 178): "The defendant also contends that the licensed architect's affidavit is hearsay because it does not formally recite that it was made on personal knowledge. Code Ann. § 81A-156 (e). `This does not mean that the affidavit must contain a statement in those words. "A statement in the jurat to the effect that the affidavit is made upon personal knowledge is generally sufficient" to comply with the Act, ... but the requirement of personal knowledge may be met by other material in evidence, at least when no objection to the form of the affidavit was made in the trial court. Holland v. Sanfax Corp., 106 Ga. App. 1, 5 ( 126 S.E.2d 442); Lawson v. American Motorists Ins. Corp., 217 F.2d 724, 726 (5th Cir. 1954); Chambers v. United States, 357 F.2d 224, 228 (8th Cir. 1966).' Nevels v. Detroiter Mobile Homes, Inc., 120 Ga. App. 60, 62 ( 169 S.E.2d 716), cert. den. 120 Ga. App. 886; Central Chevrolet, Inc. v. Lawhorn, 120 Ga. App. 650 (2) ( 171 S.E.2d 774). As to the service and time of filing of the affidavit, there is no showing of any objection being made in the trial court or any harm to the defendant. See Simmons v. State Farm Mut. Auto. Ins. Co., 111 Ga. App. 738 ( 143 S.E.2d 55); Harrington v. Frye, 116 Ga. App. 755, 757 ( 159 S.E.2d 84); Wood v. Brunswick Pulp c. Co., 119 Ga. App. 880, supra. Malone v. Ottinger, 118 Ga. App. 778 ( 165 S.E.2d 660), is not a binding precedent for the reason it was only a two-judge opinion." In Wakefield, supra, we held that it affirmatively appeared that the affiant was competent to testify as to the customary practice in the construction business by virtue of the fact he stated he was a licensed architect. In Nevels, supra, we held that it affirmatively appeared that the affiant was competent to testify as to what action the company had taken with respect to certain facts by virtue of the fact he stated he was the general manager of the company. Here the affiant stated that he was the plaintiff's collection manager.
As Justice Cardozo said many years ago we should never "exalt form above substance." People v. Defore, 242 N.Y. 13, 23 ( 150 NE 585).