Chilson v. P. G. Industries

FOX, P. J.

This is an appeal by defendant P. G. Industries from a summary judgment and from the order granting plaintiff’s motion therefor.

Plaintiff brought this action to recover the balance of the purchase price of certain merchandise sold and delivered to the defendant

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by plaintiff’s assignor. The affidavit in support of the motion for summary judgment has attached photostatie copies of the initial invoices and, also, certain credit memoranda representing returned merchandise. The affidavit on behalf of plaintiff states that defendants “contend that although they originally received the merchandise . . . that thereafter they returned a portion thereof other than the items for which credit was given . . . and that they are entitled to additional credits; that plaintiff’s assignor has no record of receiving any merchandise returns other than those for which credit has been given . . . and plaintiff’s assignor has requested that the said defendants . . . furnish the plaintiff’s assignor with bills of lading and receipts signed by plaintiff’s assignor in order to verify the aforesaid returns and the receipt thereof by plaintiff’s assignor, but the defendants . . . have failed and refused to furnish plaintiff’s assignor with any of such purported bills of lading or receipts, and . . . that the defendants . . . have failed to furnish said bills of lading and receipts for the reason that the same do not exist, and that there still remains past due and owing from the said defendants ... on account of the merchandise purchased from plaintiff’s assignor, the . . . sum of $813.24, plus interest at the lawful rate of seven per cent per annum, from and after December 1, 1957.”

[615]

The affidavit in opposition was executed by Mr. Gyorke, the sole owner of P. G. Industries. He states that “a bona fide issue in dispute exists in the above entitled cause ... in that affiant claims the return of certain merchandise to plaintiff’s assignor, for which plaintiff’s assignor refuses and continues to refuse, to give additional credit to defendant; . . . that the value of such merchandise returned and the credit claimed is the sum of $828.52; that the propriety of such claim and wrongfulness of plaintiff’s assignor in refusing such claim, is the issue to be determined by a trial on the merits of the above entitled action. That affiant, being personally familiar with said matters, is competent to testify thereon, and, if sworn, would so testify. ’ ’