Giant Peanut & Grain Co. v. Long Manufacturing Co. ( 1973 )

Evans, Judge,

concurring specially. A very close question is presented as to whether the "new oral agreement” referred to in the majority opinion is binding on the Long Corporation. The original written contract between the parties provides: ". . . that an officer of the company has any authority to in any manner vary, add to, or change any of the terms hereof, or to make any representation of any kind not set forth in this agreement.” (Emphasis supplied.) The new oral agreement was made between a representative of the Giant Corporation and a representative of the Long Corporation, whose last name was "Bull.” Was it shown that Bull was an officer of the Long Corporation, and thus one who was authorized to agree to "vary, add to, or change any of the terms” of the original written agreement? The only testimony suggesting Bull was an officer of the Long Corporation is as follows: 1. "In other words, all of them talked like that Bull is the bull.” (Tr. 62) 2. "And that’s all I know — Bull. And they talked like that Bull is — when he speaks, he is the bull, is all I know.” (Tr. 63) While this would generally be termed unsatisfactory evidence to prove that Bull was an officer of the Long Corporation, in motions for summary judgment all inferences and presumptions must be construed most favorably towards the party opposing the motion. McCarty v. National Life &c. Ins. Co., 107 Ga. App. 178, 179 (129 SE2d 408). And under such construction this testimony barely, and only barely, suggests that Bull was an officer of the Long Corporation.