Summary
In Woody v. Ralston Purina Co., 117 Ga. App. 352 (160 S.E.2d 662), this court reversed a summary judgment for the defendant, holding that parol evidence respecting the plaintiff's agreement to furnish feed as a consideration for the note was admissible and presented an issue of failure of consideration.
Summary of this case from Ralston Purina Company v. WoodyOpinion
43174.
ARGUED NOVEMBER 8, 1967.
DECIDED FEBRUARY 21, 1968. REHEARING DENIED FEBRUARY 29, 1968.
Action on note. Lumpkin Superior Court. Before Judge Blackshear.
Robinson, Thompson, Buice Harben, C. Frank Strickland, Jr., for appellant.
Kenyon Gunter, Julius M. Hulsey, for appellee.
This appeal protests the grant of a summary judgment in plaintiff's favor in a suit on a note. Where, as here, the note contains the usual statement of consideration, "for value received," and the suit is between the original parties, parol evidence is admissible to show the true consideration and that the consideration failed. Jones v. Lawman, 56 Ga. App. 764, 773 ( 194 S.E. 416). The defendant pleaded a failure of consideration in that appellee had failed and refused to provide feed for the birds as required by an oral agreement. At the hearing the only evidence submitted by the plaintiff was a deposition of the defendant. The defendant, in opposition to the motion, submitted his personal affidavit. On summary judgment the court is required to take that view of the evidence most favorable to the party against whom the motion is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (1) ( 126 S.E.2d 442). This is true even though the only evidence offered is by a party to the suit. This constitutes an exception to the rule applied in Davis v. Akridge, 199 Ga. 867 (2) ( 36 S.E.2d 102) and similar cases. A summary judgment should not be granted if the evidence merely preponderates toward one party's theory rather than toward the other party's theory or if the evidence does no more than disclose circumstances under which either satisfactory proof of plaintiff's case or a satisfactory defense by defendant will be highly unlikely on a trial. Watkins v. Nationwide c. Ins. Co., 113 Ga. App. 801, 803 ( 149 S.E.2d 749). Applying the foregoing rules the most favorable inference to be drawn from the evidence is that the defendant did not receive all of the true consideration for the note. The plaintiff did not show that the consideration for the note did not include its furnishing cost-free feed for the defendant's chickens.
Judgment reversed. Pannell and Whitman, JJ., concur.