Feiner v. Sun Ray Drug Co. of Fla., Inc.

The affidavits submitted in support of the plaintiff-appellee’s motion for the entry of a summary final judgment and the affidavit submitted in opposition to the motion clearly produced a factual issue as to whether the payment of $1,000 by or for the defendant-appellant to the plaintiff-appellee on January 4, 1954, was in partial payment, in advance, of insurance premiums which were to become due later on the issuance of renewal policies. If so, the amount of the • plaintiff-appellee’s claim against the defendant-appellant is $394.41; and if not the amount is $1,394.41.

It is obvious, we think, that the court below believed the supporting affidavits and disbelieved the counter-affidavit. While the supporting affidavit presented a factual version which was more reasonable and credible than that presented by the counter- ' affidavit, it is our judgment that the factual dispute was one for a jury’s determination.

Accordingly, the judgment appealed from (entered July 5, 1955, in minute book 95, at page 131, of the records of the court below) is reversed and the cause is remanded for further proceedings consistent with our expressed view.