Pinеco, Inc. (“Pineco”) brought an action alleging that defendant-appellant executed an “indemnity agreement” whereby he guaranteed payment tо the plaintiff of all indebtedness of Reliable Pallet Company. Pineco set forth in its complaint that Reliable Pallet Company was indebted to Pineco in thе specific amount of $24,357.11, “as shown on the invoices attached” and had refused all demands for payment. It asserted that appellant Thomasson, by reаson of his indemnity agreement, is indebted to Pineco in the amount of the invoices, $24,357.11. In reply, Thomasson asserted the affirmative defense of partial failure of consideration, admitted that Reliable is indebted to Pineco “in some amount” and denied that he unconditionally and legally guaranteed payment to plаintiff. On motion for summary judgment, Pineco’s President swore that Thomasson “ordered the material shown in the invoices identified as Exhibit B to the plaintiff’s complaint.”
After a hearing, the court granted the motion and entered judgment for the amount sought. Defendant appealed. Held:
Strictly speaking, “ ‘[i]n a contract of indemnity the indemnitor, for a consideration, promises to indemnify and save harmless the indemnitee against liability of the indemnitee to a third person, or against loss resulting from such liability. The contract of the indemnitor is an original undertaking’. . . An indemnity contract differs from a guaranty in that the former ‘is an original rather than a collateral undertaking and generаlly undertakes to make good the promisee’s loss resulting from his liability to another rather than from another’s liability to him.’ ”
National Bank of Monroe v. Wright,
“Generally a surety or guarantor may assert all defenses to a contract which would be available to his principal, with the exception of personаl defenses, e.g., infancy, incapacity, bankruptcy, etc.”
Peterson v. Midas Realty Corp.,
It should be observed that the defendant by affirmative defense alleged a partial failure of consideration. Formerly, in an unbroken line of cases it was held that where plaintiff was the movant, it was incumbent upon him to negate properly plead defеnses, even conclusionary ones, “even to the extent of affirmatively proving a negative.”
Home Mart Bldg. Centers v. Jones,
An invoice is evidence of goods sold; moreover, it is evidеnce of goods delivered. Black’s Law Dictionary (4th ed.). Pineeo has proven its invoices and sworn to the indebtedness of Reliable and Thomas-son. This is prima facie evidence of the indebtedness. There is no hint or evidence that these invoices are incorrect or that the material was, contrary to thе invoices, never delivered. Thomasson does not, in fact, even imply the materials were not delivered. He merely asserts the vague and general defеnse of partial failure of consideration.
OCGA § 9-11-56 places the burden on the moving party to show that no material issues of fact exist. But, when a prima facie showing is made by the moving party, “[t]he opposite party must come forward with rebuttal evidence at that time, or suffer judgment against him.” Meade, supra at 180.
Thomasson has yet to say why he pleads failure of considеration. “The purpose of the Summary Judgment Act, as we have interpreted it, would be defeated if a party opposing a motion for summary judgment was permitted to defeat the motion by suggesting so vague a defense as to prevent the movant or the court from ascertaining the theory behind the defense. ... As stated in the Act itself, a response ‘must set forth
specific facts
showing that there is a genuine issue for trial.’ ” (Emphasis supplied.)
Meade,
supra, p. 180. See also
Match Point, Ltd. v. Adams,
There being no proof regarding any failure of consideration, the defendant’s conclusionary affirmative defense furnishes no basis for denial of the summary judgment motion. The only issue is whether the plaintiff’s affidavit set forth a prima faсie right to recovery.
The defendant raises the issue that the plaintiff failed to establish that the goods were delivered and therefore could not recover on an open account against the principal, Reliable. See
Local Tradesmarks, Inc. v. Chupp,
A careful reading of plaintiff’s affidavit reveals that the defendant orderеd the material shown in the invoices; that there was no set off or other obligation owed to defendant nor was plaintiff indebted to defendant in any amount; that nоne of the amount sued for has been paid.
The plaintiff in this case has proven its invoices. Thomasson has merely pled the vague defense of partial failure of consideration. He forces us to guess at the theory behind his defense. Meade, supra, p. 180. The invoices are proof of sale. There is no suggestion thе goods were not delivered. Thomasson does not claim the goods were not delivered. In fact, we have no idea what Thomasson means by his general dеfense of failure of consideration and we are not authorized to imagine or guess the goods were not delivered. When Pineco presented prima facie evidence of indebtedness and moved for summary judgment, it became Thomasson’s burden to show specific facts “at that time” (Meade, supra) to support his general defense of failure of consideration. Since he did not do so, he has not shown that any material issue of fact exists. Pineco was entitled to summary judgment, and the trial court was correct to grant it.
Judgment affirmed.