Atwood v. Southeast Bedding Co., Inc.

485 S.E.2d 217, 226 Ga. App. 50, 97 Fulton County D. Rep. 1534, 33 U.C.C. Rep. Serv. 2d (West) 73, 1997 Ga. App. LEXIS 411
CourtCourt of Appeals of Georgia
DecidedMarch 14, 1997
DocketA96A1948
StatusPublished
Cited by6 cases

This text of 485 S.E.2d 217 (Atwood v. Southeast Bedding Co., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atwood v. Southeast Bedding Co., Inc., 485 S.E.2d 217, 226 Ga. App. 50, 97 Fulton County D. Rep. 1534, 33 U.C.C. Rep. Serv. 2d (West) 73, 1997 Ga. App. LEXIS 411 (Ga. Ct. App. 1997).

Opinions

Beasley, Judge.

Southeast Bedding, d/b/a Loving Care, manufactures mattresses and box springs. It sued retailers Atwood and Pennington, d/b/a The Mattress Store, on open account. As both a defense and a counterclaim, Atwood and Pennington asserted breach of contract and [51]*51breach of warranty on the ground that some of the merchandise Southeast shipped to them was defective. On Southeast’s motion for summary judgment, the court ruled that Atwood and Pennington were barred from any remedy due to their failure to give notice of defects that complies with OCGA § 11-2-607 (3) (a).

In one enumeration, appellants argue that the court erred in granting Southeast summary judgment as to appellants’ counterclaim. Their other enumeration is that the court erred in granting Southeast summary judgment on its complaint. Both enumerations depend upon appellants’ ability to show there is a genuine issue of material fact that they gave the statutory notice.

1. Appellants argue that notification was given in primarily two forms: verbal, during the course of performance, with some complaints sent by facsimile transmission; and written, after termination of the account.

On December 7, 1992, appellants placed their first bedding order on the account. They placed many more orders over the next several months, but in September 1993 Southeast became concerned because the unpaid balance on the account was over $42,000. On October 13, the parties agreed that future orders would be paid on delivery, with appellants making additional payments toward the account balance. Southeast was dissatisfied with the debt payments and terminated the account on November 5, retrieved the unsold merchandise from appellants’ stores and credited appellants’ account. This resulted in the balance of $20,427.55 for which it eventually sued.

On November 11, appellants through counsel delivered a letter to Southeast informing it they would assert claims for breach of contract and warranty in the event Southeast sued on the account. The letter specifically stated it was to serve as proper notice under OCGA § 11-2-607 (3) (a) that goods appellants had received were unacceptable. The letter asserted there were defects beginning with the very first delivery in December 1992.

In letter briefs to this Court, the parties address the appellants’ decision that no depositions be included in the record on appeal. Despite appellants’ contention that the trial court’s order does not mention any deposition, the court specifically relied on Atwood’s deposition for evidence that any goods rejected had been either replaced or returned for credit and that in November all goods were either reclaimed by Southeast Bedding or had been sold previously or otherwise disposed of by appellants. As the court correctly noted, this established acceptance of the goods. Contract Sales &c. v. American Express &c., 216 Ga. App. 61, 62 (453 SE2d 62) (1994).

Southeast contends the decision to omit a deposition which was relied on by the trial court requires that we presume the grant of summary judgment is proper, citing Peacock v. Campbell, 223 Ga. [52]*52App. 620 (478 SE2d 410) (1996). Although Peacock is physical precedent only, see Court of Appeals Rule 33 (a), the rule that appellants’ omission of evidence necessary for determination of issues on appeal will result in an affirmance has been established. See Bennett v. Executive Benefits, 210 Ga. App. 429 (436 SE2d 544) (1993). However, the deposition evidence the court cited is not such as to determine all appellate issues. Rather, the issue that relates to both counterclaims and defenses based on breach of warranty and breach of contract is whether there is any evidence to support the appellants’ contention that they gave notice of defective merchandise and breach of warranty “within a reasonable time” under OCGA § 11-2-607 (3) (a). In accordance with Bennett, supra, we presume the court’s ruling is correct, based on Atwood’s deposition, that it is undisputed all rejected bedding was properly credited and the bedding upon which appellants based their defenses and counterclaims was accepted.

Because of that ruling, appellants can only pursue remedies that apply to the goods they accepted. OCGA § 11-2-607 (2) provides that “acceptance does not of itself impair any other remedy provided by this article [Article 2: Sales] for nonconformity.” The buyers contend they had to repair some goods and sell them at a discount. OCGA § 11-2-714 provides that a buyer can recover damages for breach of warranty or breach of contract even though the buyer accepted the defective goods. See Fiat Auto USA v. Hollums, 185 Ga. App. 113, 115-116 (4) (363 SE2d 312) (1987); Wolfes v. Terrell, 173 Ga. App. 835, 836 (2) (328 SE2d 569) (1985); see also OCGA § 11-2-715. To recover for such, appellants must show they notified Southeast of defects in accepted goods as required by OCGA § 11-2-607 (3) (a).

In its motion for summary judgment, Southeast argued that evidence of notification of any defects was insufficient, and that the only evidence of any notice was the letter of November 11 after the parties had closed their account. Southeast admitted it had received complaints about its products throughout the course of the parties’ dealings. In response, appellants filed Atwood’s affidavit in which he stated that during the course of the contract’s performance he verbally informed Southeast that various goods were defective.

As to the November 11 letter, the court ruled as a matter of law it did not serve as notice of defect “within a reasonable time” under OCGA § 11-2-607 (3) (a). “ ‘The purpose of the rule [requiring notice within a reasonable time], as stated in the comment to the UCC, is to defeat commercial bad faith. If the seller is notified of a breach within a reasonable time he has opportunity to ascertain for himself the nature and extent of the breach by taking advantage of UCC § 2-515 which gives either party upon reasonable notification to the other, the right to inspect, test and sample the goods . . .for the purpose of ascertaining the facts and preserving evidence.’ [Cit.]” Intl. [53]*53Multifoods Corp. v. Nat. Egg Products &c., 202 Ga. App. 263, 266 (4) (414 SE2d 253) (1991). Appellants’ claims are for defective goods that they had to repair and sell at a discount. Written notice sent only after the relationship has been terminated and all goods either sold or retrieved by the seller does not and cannot serve the purposes of OCGA § 11-2-607 (3) (a). Notice on November 11 did not permit Southeast to inspect or cure the already sold merchandise.

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Atwood v. Southeast Bedding Co., Inc.
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Bluebook (online)
485 S.E.2d 217, 226 Ga. App. 50, 97 Fulton County D. Rep. 1534, 33 U.C.C. Rep. Serv. 2d (West) 73, 1997 Ga. App. LEXIS 411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atwood-v-southeast-bedding-co-inc-gactapp-1997.