168 Ga. App. 584 | Ga. Ct. App. | 1983
Queen Cutlery Co. sued Atlanta Cutlery Corporation on an account arising out of the sale of certain knives which were “seconds.” Queen moved for partial summary judgment based upon Atlanta Cutlery’s answers to interrogatories and requests for admission. Atlanta Cutlery stood on its pleadings and submitted no affidavits of defense. The trial court granted Queen’s motion and Atlanta Cutlery appeals.
Appellant contends that issues of fact raised by the affirmative defenses in its answer preclude the grant of a motion for partial summary judgment. Appellant admitted in its responses to interrogatories and requests for admission that it had ordered and received $18,771 in goods and had paid $6,257 to appellee on the account. Appellant also claimed it returned goods of the value of $9,669. Appellee disputed this latter item; nevertheless, after
As the moving party for summary judgment, appellee had the burden of piercing appellant’s affirmative defenses. Peppers v. Siefferman, 153 Ga. App. 206, 207 (265 SE2d 26) (1980). Appellant presented several “affirmative” defenses in its answer. Appellant’s affirmative defense of accord and satisfaction was pierced by its answer to appellee’s interrogatories in which appellant stated that its offer to liquidate the account for $5,000 received no response from appellee, and that appellant thereafter returned part of the knives pursuant to the original agreement. Thus, it is apparent that no subsequent agreement was ever executed in satisfaction of the original agreement. See Woodstock Rd. &c. Prop. v. Lacy, 149 Ga. App. 593 (1) (254 SE2d 910) (1979). Appellant’s answer also dispensed with its asserted defense of rescission, since the statement showed that both parties continued to fulfill the provisions of the original agreement with no indication that the parties mutually agreed to rescind the agreement. See Holloway v. Giddens, 239 Ga. 195, 197 (236 SE2d 491) (1977).
Appellant admitted in its answers to appellee’s interrogatories and requests for admission that it ordered the goods represented on appellee’s invoice and admitted further that appellant’s agent signed a letter containing the terms of the agreement. Although appellant contests whether the letter contained all the terms of the agreement, its admission as to the invoice and the signature was sufficient to pierce the Statute of Fraud defense. See Hagan v. Jockers, 138 Ga. App. 847 (2) (228 SE2d 10) (1976).
Appellant’s admissions as to the total price of the shipment of knives, their receipt, partial payment for some knives and partial return of others, defeated appellant’s affirmative defense of payment since it is clear that this partial payment and partial return of the goods did not extinguish the entire amount owing on the account. 23 EGL 457, Payment, § 2.
Another of appellant’s affirmative defenses stated: “Defendant asserts the defense of fraud.” Although subject to a motion for a more definite statement under OCGA § 9-11-12 (e), this statement has been found sufficient as an allegation of fraud. See Tucker v. Chung Studio, 142 Ga. App. 818, 820 (237 SE2d 223) (1977), overruling Henry v. Allstate Ins. Co., 129 Ga. App. 223, 225 (1a) (199 SE2d 338) (1973). Thus, appellee was required to pierce the defense in order to prevail on the motion for partial summary judgment. Appellant’s own statements, made in response to appellee’s interrogatories and requests for admission, revealed that the transaction was made by
Since appellee pierced appellant’s affirmatively raised defenses, and appellant presented no evidence to show that genuine issues of material fact existed as to these defenses, the trial court did not err in granting appellee’s motion for partial summary judgment. Meade v. Heimanson, 239 Ga. 177 (236 SE2d 357) (1977).
Judgment affirmed.