Frazier Aiken, one of the defendants in the case still pending below, appeals the grant of summary judgment against him as to his liability to the plaintiff, Drexler, for materials it furnished for the construction of a home of another. Aiken asserts that certain evidence, particularly his deposition testimony that his participation in the project was as an agent for a disclosed principal and not in his individual capacity, presents a jury question as tо his individual liability for the materials furnished.
In response to this contention Drexler, the movant for summary judgment here, as did the movant in
Combs v. Adair Mortgage Co.,
In response to this question the Supreme Court stated: “Therefore, we answer the question certified by saying that this court continues to adhere to the rule еnunciated in Burnette Ford, Inc. v. Hayes, supra, and views the holding in Chambers v. Citizens & Southern National Bank, supra, as one which came about as a result of factual differences.”
Under
Burnette,
where a pаrty to a case not having the burden of proof on trial makes a motion for summary judgment, all evidence adduсed on said motion including the testimony of the party oрposing the motion, is construed most strongly against the movаnt. Generally, however, in all instances where a party is intentionally or deliberately self-contradictory, thе court may construe his testimony in the most unfavorable light tо him.
Chambers v. C. & S. Nat. Bank,
supra at 502;
Brooks v. Douglas,
Although Aiken’s testimony is somewhat vague and inconsistent, it dоes not disclose an attempt to confuse or mislead the court. Such inconsistencies may weaken his case at trial but do not, as a matter of law, entitle the movant to summary judgment.
Brooks v. Douglas,
supra. Whether or not there is an аgency relationship presents a question of fact which may be shown by direct or circumstantial evidencе, and “[t]he cardinal rule of the summary judgment procedurе is that the court can neither resolve the facts nor reconcile the issues, but can look only to ascertain if there is an issue. [Cit.]”
Fletcher Emerson Management Co. v. Davis,
Construing Aiken’s deposition in the light of these principles we are compelled to hоld that its favorable portion presents a question of *438 fact as to Aiken’s individual liability, and accordingly, reversal of the grant of summary judgment is required.
Judgment reversed.