Augstein & Co. v. Berman

To an action for the price of goods sold the defendant pleaded that the goods were faulty. In support of its motion for summary judgment the plaintiff submitted affidavits alleging that the goods rejected by the defendant were, in fact, of good quality. If the defendant had submitted a counter affidavit it would only have repeated the general position of the answer. A controversy about the quality of goods sold does not lend itself to disposition by summary procedure. The quality of goods is necessarily a matter of opinion *40which must be expressed by the trier of the facts after obtaining all available data, a condition not present on the submission of affidavits. Controversies regarding matters largely subjective such as whether one operated an automobile with due care, or whether goods or services are of good quality can rarely, if ever, be decided except upon a trial of the issue. Likelihood of success is not a test as to the existence of a genuine issue. I think that the defendant is entitled to a trial upon the issue presented by the pleadings and that the summary judgment should be reversed.