324 S.E.2d 527 | Ga. Ct. App. | 1984
This case involves a suit on open account. Plaintiff Carolina Eastern, Inc. contends that the defendant Fred Paulk is indebted to it in the amount of $6,662.63, as more fully shown on the statement of account attached listing certain invoices, payments and finance charges.
The defendant answered denying the complaint, admitting only jurisdiction.
Plaintiff moved for summary judgment based upon an affidavit of plaintiff’s vice president and credit officer who deposed that during the year 1981 the corporation had purchased the assets of Agrico, Inc. which included the account of the defendant. He then proceeds to outline the attached invoices of Agrico, Inc., its business records and now the business records of the plaintiff, contending certain invoices were signed by the defendant with reference to products purchased including a return and credit and payment, as well as a credit application and agreement signed allegedly by the defendant authorizing finance charges as applied to the account at the rate of 18% per annum on the unpaid balance; and that the account is delinquent, in default, and justly due and owing.
In opposition to the motion the defendant again denied in an affidavit that he was indebted to the plaintiff in the amount claimed. Further, he deposed that he had examined the signatures contained in the invoices attached to the support affidavit of the plaintiff and
The trial court bases its judgment upon the cases cited that if the defendant did not order or receive the merchandise then it was incumbent upon him to set forth specific facts showing there is a genuine issue for trial; hence, the plaintiff was entitled to summary judgment. We do not agree. We first note that the credit officer merely states in his affidavit that the invoices upon which he relies were purchased from another corporation, and we do not have an affidavit of anyone involved in the business records of that corporation. We also note that the credit officer states in his affidavit with reference to the invoices of the other corporation that they were signed by the defendant. Our examination of the same invoices in the record shows that not all of the invoices were actually signed by the defendant, and the defendant specifically denies that he signed any of these exhibits. Whether or not the evidence as presented'at a trial would be sufficient for the fact finder to make a determination in favor of the plaintiff we do not have to decide. We do find from the facts that the plaintiff is basing its case upon business records of another corporation it had purchased, and the defendant has denied the indebtedness in the amount claimed although he does not specifically deny the account or having such an account or having received any merchandise although denying the execution of the credit application and agreement. Further, the finance charges shown thereon are based upon OCGA § 7-4-16 wherein the owner of a commercial account may charge interest on the unpaid portion of a commercial account which has been due and payable for 30 days or more “at a rate not in excess of I-V2 percent per month calculated on the amount owed from the date upon which it became due and payable until paid.” This statute also provides that unless otherwise provided in writing signed by the obligor, a commercial account becomes due and payable upon the date a statement of the account is rendered to the obligor and further defines a commercial account as being an obligation for the payment
Judgment reversed.
