delivered the opinion of the court.
This action was brought to recover the alleged balance due on a written agreement for the purchase of a new 1963 Chevrolet automobile. A summary judgment was rendered in favor of the plaintiff in the amount of $1,000. The defendant makes several arguments in his appeal but his chief one is that the pleadings and affidavits before the trial court created a genuine issue of fact which requires determination by a jury.
The controversy centers on a car order form which was prepared on November 10, 1962, by John M. Leahy, vice-president and agent of the plaintiff corporation, and executed by the defendant. The pertinent features of this agreement are as follows:
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According to this instrument the total price of the new car with accessories was $3,253.74 and the deposit paid at the time of the car order was $100. The trade-in allowance indicated for the defendant’s used vehicle was $1,253.74 and the indicated cash on delivery figure was $900. The plaintiff corporation claims that the agreement is clear, that the deposit was $100 and that the agreement shows on its face a mere technical error of computation. It claims that the balance due was $1,900. The defendant argues that the car order calls for $900 as the balance due and that he subsequently paid this amount. The issue is whether the parties intended $1,900 or $900 as the remaining sum owed on the sale.
Some time after the execution of this agreement the defendant surrendered his trade-in vehicle, a 1961 Ford, and paid $900 to the plaintiff. He received in return the new automobile and an invoice prepared by the plaintiff which apparently indicated that the account was paid in full. The same computations as on the car order were carried over onto the invoice. Subsequently the plaintiff made a demand upon the defendant for an additional $1,000 and this action ensued.
The plaintiff’s complaint and amended complaint were verified but the verification was by an attorney for the plaintiff, who, in answer to interrogatories, disclosed that he had no personal knowledge of the disputed transaction. Therefore, he could not be a witness if the case were tried and his verification has no value in a summary judgment proceeding. Winger v. Richard-Wilcox Mfg. Co., 33 Ill App2d 115,
An affidavit by the plaintiff’s vice-president, John M. Leahy, was filed in support of the motion for summary judgment. The affiant admitted preparing the car order and claimed that he made an error in calculation which was not discovered until after delivery of the vehicle. The affiant further set forth that he told the defendant that the purchase price would be $3,253.74 and that the defendant would be allowed a credit of $1,253.74 for his trade-in car and that the defendant agreed to these terms. On the basis of this affidavit and the verified pleadings the trial court entered summary judgment for the plaintiff.
The defendant moved the court to vacate the judgment and this motion was set for hearing. At the hearing the court granted the defendant’s motion to file his own affidavit but denied the motion to vacate. The defendant appeals from the summary judgment which was entered by the associate judge from whom this ap-peal is taken and from the order denying his motion to vacate the judgment which was entered by a magistrate.
The plaintiff contends that this court should not consider the defendant’s affidavit because it was filed subsequent to the entry of the summary judgment. The decision of Gliwa v. Washington Polish Loan & Building Ass’n, 310 Ill App 465,
The affidavit of the defendant stated that he inquired of Leahy what amount he would have to pay in addition to his 1961 Ford to buy the 1963 Chevrolet and that Leahy, after making three tabulations, told him it would come to $1,009, but volunteered that he would forget the $9 and make it an even $1,000. The defendant then asked him if there would be extra charges for accessories and Leahy, after making another tabulation, said $1,000 would be the total cost including the sales tax. Leahy repeated that figure later in the evening when the defendant, after talking with his wife, returned to the sales room. The defendant thereupon said he would accept the deal and pay a $100 deposit, and would turn over his own car and pay $900 when the Chevrolet was delivered; that Leahy agreed and thereafter prepared the car order reflecting these terms which the defendant signed. The defendant stated that he and Leahy did not discuss the price of the Chevrolet but confined their conversation to what he would have to pay in cash in addition to his trade-in to obtain the car of his choice. He said he did not check Leahy’s figures and had no reason to know or suspect that a mistake was being made.
A motion for summary judgment should be denied if upon examination of the record it can be fairly said that a triable issue of fact exists. Goodwin v. Bowers, 24 Ill App2d 158,
. [6-8] But the plaintiff argues that the car order is clear on its face and that the defendant’s affidavit contains allegations of fact which would not be admissible in evidence because they attempt to vary the terms of an express contract. "We do not find this instrument to be of such complete and definitive clarity as to invoke an absolute prohibition of extrinsic evidence. Unique Watch Crystal Co., Inc. v. Kotler, 344 Ill App 54,
The pleadings of the parties, their affidavits and the ambiguities of,their contract show a genuine dispute on a material issue. The disagreement as to the intention of the parties and the conflicting interpretations of their contract should have been resolved by a jury or a trier of fact and should not have been disposed of summarily.
The judgment will be reversed and the cause remanded for trial.
Reversed and remanded.