This is аn appeal by appellant Southern Business Machines of Savannah (Southern Business) of a motion granting summary judgment in favor of appellee Norwest Financial Leasing, Inc. (Norwest), and a cross-appeal by Norwest.
Appellant Southern Business assigned the rights to receive rent under certain equipment leasing agreements to appellee Norwest. The assignment agreement provided, inter alia, that Southern Business would indemnify Norwest for any claims involving Southern Business’ obligations or liabilities under the leasing agreements; it also provided that Southern Business would reimburse Norwest for any and all damages and costs, including reasonable attorney fees, which Norwest might sustain as a result of Southern Business’ breach of any warranty in the assignment agreement. A duly executed addendum to the assignment agreement further provided that Southern Business would have to pay an amount equal to the original purchase price paid by, less any rental payments received by, Norwest in the event a lessee *254 defaulted under the terms of an assigned leasing agreement. Subsequently certain lessees either defaulted or cancelled their leáses without paying the rental provided for in the assigned lease agreements. Norwest made demand upon Southern Business for payment and the latter declined to pay.
Norwest commenced suit against Southern Business for breach of the assignment agreement and sought to recover the unpaid balance due under the leases, together with certain late charges, costs, post-judgment interest, and attorney fees. Subsequently, Norwest amended its complaint to aver a second count of fraud and a third count averring a breach by Southern Business of the terms of an unconditional guarantee allegedly contained in one of the assigned lease agreements. Southern Business filed a counterclaim against Norwest averring tortious interference with contractual relationships, libel, and the intentional and negligent breach of the duty of good faith.
Appellee Norwest filed a motion for partial summary judgment against appellant Southern Business on Counts I and III of its complaint and on appellant’s counterclaims. The trial court granted Norwest’s motion for partial summary judgment on Counts I and III of the complaint in the amount of $16,689.73 plus late charges of $834.39, but declined to award attorney fees. The trial court further granted summary judgment to Norwest on Southern Business’ counterclaims. Appеllant Southern Business appeals this grant of partial summary judgment, and appellee Norwest cross-appeals the trial court’s failure to award attorney fees.
I. Case No. A89A1770
1. Appellant Southern Business asserts that the trial court erred in ruling that appellee Norwest was not barred from recovery by its actions causing the lessees to breach their leases.
Appellant specifically asserts that the conduct of appellee Norwest in harassing certain lessees for collection of rent caused those lessees to breach or terminate their equipment rental leases, and that appellant’s own performance under the assignment agreement was thereby excused under OCGA § 13-4-23.
OCGA § 13-4-23 provides that “[i]f the nonperformance of a party to a contract is caused by thе conduct of the opposite party, such conduct shall excuse the other party from performance.” Accordingly, “ ‘[w]here a contract provides that there must be a tender of money or a performance of some obligation, the party bound to make the tender or perform the obligation may be relieved, and the tender and obligation held to have been waived, whеre the other party to the contract repudiates it, by act or word, or takes a position which would render tender or performance of the obligation imposed useless or im
*255
possible.’ ”
Stokes v. Walker,
The record does not contain any admissible evidence giving rise to a genuine issue that conduct of appellee Norwest rendered appellant’s performance of the contested provisions of the contract either useless or impossible. We fail to see how appellee’s conduct in contacting lessees, even assuming it was accomplished in bad faith, prevented appellant from performing under the contract. See
Thompson v. Crouch Contracting Co.,
Moreover, we note that except for evidence pertaining to JohnsManville Sales Corporation (see Division 2, below), the only evidence in the record regarding appellee’s alleged harassment of оther lessees by means of collection calls was hearsay in nature.
Further, the trial court expressly found, and we agree, that “[t]here is no question but that [appellant] has not performed under the hold harmless terms of the master [lease] assignment.” Thus, we have a situation where no genuine material issue of fact exists either as to appellant’s breach of the lease or as to the nonexistence of the affirmative defense claimed by appellant. “ ‘If the movant carries his initial burden, as was done in this case, and the respondent does not present refuting evidence
that is adequate
to raise an issue of fact, a summary judgment for the movant must be granted.’ [Cit.] ‘(W)hile there may be some “shadowy semblance of an issue” (cit.), the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.’ ” (Emphasis supplied.)
Southern Trust Ins. Co. v. Braner,
The case of
Kent v. Hunt & Assoc.,
*256 2. Appellant asserts that the trial court erred in ruling that appellant had not breached its obligation of acting in good faith in regard to its obligation and privileges under the lease assignment agreement.
With the exception of certain evidence pertaining to lessee Johns-Manville Sales Corporation, all evidence in the record pertaining to reasons why the various lessees either defaulted in or cancelled their equipment leases constituted inadmissible hearsay evidence. Hearsay evidence has no probative value, unless part of the res gestae, in a summary judgment proceeding.
Skinner v. Humble Oil &c. Co.,
“In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cits.] Moreover, opinion evidence can be sufficient to preclude the grant of summary judgment. [Cit.] The movant has the burden ‘to show that no material issue remains, and the pleadings will be construed and inferences from the evidence interpreted favorably toward making and retaining a genuine issue of fact.’ ”
Mitchell v. Rainey,
Appellant Southern Business in essence asserts in its amended counterclaim, Count III, that аppellee breached its good faith obligation toward appellant. This claim is sounded both in tort and in contract in the pleadings.
It is a well-recognized principle of contract law “that both parties áre under an implied duty of good faith in carrying out the mutual promises of their contract.”
Jackson Elec. &c. Corp. v. Ga. Power Co.,
However, we find that under the attendant facts there exists no fiduciary relationship between appellant and appellee, flowing merely from the lease assignment agreement. In this instance, “the parties
*257
were engaged in a transaction
with each other
in an effort to further their own separate business objectives.”
Kienel v. Lanier,
Regarding the contract claim, the assignment agreement in this case expressly provided that “[sjeller [Southern Business] authorizes Norwest to confirm directly with such [l]essees the assignment of their [1]eases and to collect payments under the [1]eases.” The trial court in its ratio decidendi construed the gravamen of appellant’s allegations as being that appellee Norwest caused the lessees to cancel their contracts by making calls tо collect monies owing under the leases, but observed that the contract gave the appellee authority to collect payments under the leases, and held that the appellant’s president admitted in judicio appellee “was privileged to contact the lessees.” The trial court then concluded appellant failed to respond with rebuttal evidence after аppellee Norwest pierced their pleadings. The trial court also found that “the acts alleged to have caused the lessees nonperformance were admitted [by appellant’s president] to be a legitimate exercise of the plaintiff’s right to contact the lessees.” (Emphasis supplied.) We disagree.
The provisions in the assignment contract, purporting to authorize appеllee to contact lessees directly and to collect payment from them, did not expressly or impliedly authorize appellee to exercise this power in a manner constituting a lack of good faith. Moreover, appellant’s president, contrary to the conclusion of the trial court, did not admit in judicio that appellee had
legitimately
exercised its contact and collеction authority under the assignment agreements. Rather, the record reflects that appellant’s president when asked about whether any agreement with appellee Norwest prohibited the contacting of customers responded, “Yeah, they
can
contact customers.” (Emphasis supplied.) This response when examined in context is not an admission of fact but rather is a mere conclusion regarding the legal interpretation to be given to the provisions of the assignment agreement authorizing appellee Norwest to confirm directly with lessees the assignment of their leases and to collect payments due thereunder. “An admission in judicio applies only to the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact. Thus, allegations which are conclusory, or which assert mere opinions of the pleader are not admissions in judicio.” Green, Ga. Law of Evidence (2d ed.), § 238, p. 394. Accordingly, the rules pertaining to admissions made in plead
*258
ings or other admissions made in judicio have application to admissions of fact, “and [are] not applicable where the admission is merely the opinion on the part of the party making it as to the legal effect of the instrument sued on. . . .”
Clift & Goodrich v. Mincey Mfg. Co.,
The record reflects that a representative of Norwest did make an admission of fact to appellant’s president that over 50 telephone calls for collection were made to Johns-Manville within a short period of time. Moreover, the plant controller of Manville Sales Corporation testified by deposition that the calls were harassing because of their number and also because of “[t]he tone of voice, the insistence, [and] the implication that we were not paying the invoices, were not making the proper payments.”
Wе are satisfied that a genuine issue exists as to appellee Norwest’s good faith regarding its collection practices with JohnsManville Sales Corporation. Where the evidence on the issue of good faith is contested, the contest must be resolved by the trier of fact, as good faith is always a question for the jury.
Builders Transport v. Hall,
Accordingly, we find that the trial court erred in granting summary judgment on that portion of Count III оf appellant’s counterclaim, as sounded in contract for breach of covenant of bad faith, as pertained to appellee Norwest’s contacts with Johns-Manville. Regarding the grant of summary judgment as to breach of covenant claims grounded upon contacts with other lessees and as to claims grounded in tort we find the trial court did not err in granting summary judgment as to Count III.
3. Appellant assеrts that the trial court erred in ruling that appellee did not tortiously interfere with the business contracts or relationship of appellant.
“The intentional and non-privileged interference by a third party with existing contractual rights and relations constitutes a tort for which an action shall lie. [Cits.] Furthermore, the courts of this state have recognized that such interference with a contractual right or relationship need not result in a breach of the contract to be actionable. It is sufficient if the invasion
retards the performance
of the duties under the contract
or makes the performance more difficult or expensive.”
(Emphasis supplied.)
McDaniel v. Green,
In view of the admissible evidence of record and the reasonable inferences that can be drawn therefrom, we find that in regard to the claim of intentional interference as it relates to Johns-Manville a genuine issue of material fact exists. However, as discussed in Division 2, above, in regard to other lessees the relevant evidence оffered as to intentional interference is hearsay and therefore is not probative for purposes of summary judgment.
Appellee Norwest asserts that to prove tortious interference with contractual relations, appellant must show interference with an existing, enforceable contract. Suffice it to say “ ‘[i]t is a question of fact, and thus for the jury, whether the [appellant] has plаyed a material and substantial part in causing [appellee’s] loss of any benefits of the contract.’ ”
Perry & Co. v. New South Ins. Brokers,
Accordingly, we find that the trial court erred in granting summary judgment on the intentional interference claim to the extent that such claim was predicated on contacts with Johns-Manville.
4. Appellant asserts that the trial court erred in ruling that the actions of the appellee in sending defamatory letters to the customers of appellant were privileged and that appellant had suffered no damages.
“As a general rule, the question whether a particular publication is libelous, that is, whether the published statement was defamatory, is a question for the jury. [Cit.] However, if the statement is not ambiguous and can reasonably have but one interpretation, the question is one of law for the judge.”
Thomason v. Times-Journal,
Applying this test we find that the letters were not libelous as a matter of law, and that only by hunting for and applying a strained construction could the letters be otherwise construed. Accordingly, the trial court’s grant of summary judgment as to a cause of action grounded in defamation was correct.
Moreover, the trial court found that “the publication of these letters was made in good faith to protect the plaintiff’s interests in the equipment and thus the publication was privileged.” See generally OCGA § 51-5-7 (3). Generаlly the question of whether a communication was privileged is a jury question.
Cohen v. Hartlage,
For each of the above reasons, we find that the trial court did not err in granting summary judgment to appellee Norwest on appellant’s counterclaim for libel by innuendo.
Appellant’s other assertions of error are without merit.
II. Case No. A89A1771
Cross-appellant Norwest’s solе enumeration is that the trial court erred in failing to include an award of attorney fees in its grant of summary judgment to Norwest on Norwest’s contract claim.
In view of the disposition taken in Section I, above, we find that the issue raised in this cross-appeal is not ripe for adjudication. Accordingly, this cross-appeal will be dismissed without prejudice to cross-appellant. See
Brown v. Tomlinson,
In view of our holdings, Case No. A89A1770 shall be remanded with direction that the trial court enter judgment consistent with the opinion in Section I, above. As observed in
Winn-Dixie &c. v. Ramey,
For reasons stated in Section II, above, Case No. A89A1771 shall be dismissed without prejudice to cross-appellant.
Judgment in Case No. A89A1770 affirmed in part and reversed in part and case remanded with direction. Case No. A89A1771 is dismissed.