Watkins Products, Inc. v. England
Watkins Products, Inc. v. England
Opinion of the Court
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 SE 962); Bankers Mut. Cas. Co. v. Peoples Bank of Talbotton, 127 Ga. 326 (2) (56 SE 429); First Nat. Bank v. Carmichael, 198 Ga. 309, 315 (31 SE2d 811); Rawleigh Medical Co. v. Burney, 25 Ga. App. 20 (1) (102 SE 358); Ninth District A. & M. v. Wofford Power Co., 37 Ga. App. 271 (3) (139 SE 916); Sullivan Enterprises, Inc. v. Stockton, 118 Ga. App. 542, 546 (164 SE2d 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
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.
Concurring Opinion
concurring 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 td 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 SE2d 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
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).
Reference
- Full Case Name
- WATKINS PRODUCTS, INC. v. ENGLAND Et Al.
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- 23 cases
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- Published