Watkins Products, Inc. v. England

180 S.E.2d 265, 123 Ga. App. 179, 1971 Ga. App. LEXIS 1150

• Court: Court of Appeals of Georgia
• Decided: January 11, 1971
• Docket: 45688
• Status: Published

Opinions

Evans, Judge.

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 affidavit fails to "show affirmatively that the affiant is competent to testify to the matters stated therein,” and thus fails to comply with Sec. 56, CPA (Ga. L. 1966, pp. 609, 660; Code Ann. § 81A-156 (c)) as to evidence under motions for summary judgment. Hancock v. Hancock, 223 Ga. 481, 487 (156 SE2d 354); Chandler v. Gately, 119 Ga. App. 513 (la) (167 SE2d 697); Nevels v. Detroiter Mobile Homes, 120 Ga. App. 60 (169 SE2d 716). Absolutely nothing is shown therein as to how many agents said corporation employed who were authorized to receive returned merchandise, or how many agencies or receiving stations it owned and operated for that purpose, or the location of same, and thus as to whether or not the defendant returned merchandise is beyond the competence and knowledge of the witness. It is the obligation of the movant for summary judgment to show positively the truth of the matters which are essential to a judgment in its behalf, and this it does not do.

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.

Deen, J., concurs Hall, P. J., concurs specially.