ABCO Builders, Inc. v. Peavy Concrete Products, Inc.

Jordan, Presiding Judge.

This is an action by Peavy Concrete Products, Inc., for the alleged balance due on account of $12,021.72 for building materials furnished to ABCO Builders, Inc. The defendant appeals from an order denying summary judgment for the defendant and granting summary judgment for the plaintiff in the amount claimed. Held:

1. The motions to dismiss the brief of the appellant and the enumeration of errors are denied.

2. The appeal to the extent that it purports to assert error on the denial of a summary judgment is unsupported by any certificate of the trial judge and will not be given further consideration. CPA § 56 (h); Code Ann. § 81A-156 (h); Peachtree on Peachtree Inn v. Camp, 120 Ga. App. 403 (2) (170 SE2d 709).

3. Although it is undisputed that there is an unpaid balance of $12,021.72 for materials furnished, the record further discloses that this balance represents 15% of the account which the defendant retained by agreement with the plaintiff providing for various contingencies to occur before payment, as well as alternative methods of settlement, including payment by another by other than cash, the agreement having been made as an aid to financing the construction of a building. The evidence fails to disclose that the contingencies have occurred, or likely ever will occur in a manner which obligates the defendant to pay the plaintiff the balance on the account, in view of foreclosure proceedings on the property involved, and other arrangements for the construction of the building. For controlling principles of contract law, see Code § 20-110; Irvindale Farms v. W. O. Pierce Dairy, 78 Ga. App. 670 (51 SE2d 712); Peacock Constr. Co. v. West, 111 Ga. App. 604 (142 SE2d 332).

Argued October 5, 1970 Decided January 5, 1971. Smith, Currie & Hancock, Glower W. Jones, for appellant. Charles H. Edwards, Claude E. Hambrick, for appellee.

4. As the evidence fails to disclose that in the absence of a genuine issue of fact the plaintiff is entitled to the amount claimed as a matter of law the trial judge erred in granting summary judgment.

Judgment reversed.

Eberhardt and Pannell, JJ., concur.