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Action on account. Telfair Superior Court. Before Judge O'Connor.
Plaintiff, Carolina Chemicals, Inc., brought an action on account against the defendant, Giant Peanut Company for the purchase price of various agricultural chemicals allegedly sold and delivered and accepted by the defendant. Defendant answered, denying all material allegations of the complaint. Plaintiff moved for a summary judgment in the amount of $10,550.95. On the hearing, plaintiff relied upon a discovery deposition of the president of the defendant company taken by the plaintiff, which related primarily to examination in reference to various invoices and delivery receipts, as to which the testimony of the defendant president was to a very great degree vague, indefinite, equivocal and evasive. in the deposition he also testified the balance of the account was not over $1,000, and that the agreement between the parties was to the effect that no payments on the account were due until defendant had collected from its customers that purchased the items sold by plaintiff to defendant. Plaintiff also relied upon an affidavit of its president and its delivery man as to the correctness of the invoices and delivery tickets, and the statement of account showing charges and credits. The defendant tendered in evidence the affidavit of its president reiterating the agreement that payment to the plaintiff was to be made when payment was received from defendant's customers, "less an agreed commission for the defendant," and that "all monies which defendant has received on said account has been turned over to the plaintiff. Several farmers have not paid defendant for products furnished by plaintiff which at present totals an approximate amount of $10,000." There was no evidence in denial of the existence of such agreement.
The trial judge granted the plaintiff's motion for summary judgment, basing his conclusions on (1) construction of the defendant president's testimony most strongly against the defendant relying on Chandler v. Gately, 119 Ga. App. 513, 519 (167 SE2d 697); and (2) on the ground that the "defensive assertion that the goods were not to be paid for until the defendant sold and collected for them, is in contravention of" Code 109A-2--201 (1), relating to parol contracts of sale. Held:
binding authority on this court") insofar as the rulings therein relate to the construction of the testimony of the opposing party in a motion for summary judgment. If there be a conflict or contradiction in the testimony of the opposing party it must be construed in his favor, and such contradictions, at the most, may themselves create a conflict in the evidence as well as a question of credibility, which is solely for the jury. See Mathis v. R. H. Smallings & Sons, 125 Ga. App. 810 (189 SE2d 122); Brown v. Sheffield, 121 Ga. App. 383, 388 (173 SE2d 891).
3. Upon application of the above rules to the present case it appears that the amount of the indebtedness owed by the defendant, as well as whether or not it is now due are matters for jury determination. The trial court erred in granting the plaintiff's motion for summary judgment.
Jones & Rountree, George M. Rountree, for appellee.
Rembert C. Cravey, for appellant.
Friday May 22 13:17 EDT

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