Advanced Contouring, Inc. v. McMILLAN DIVISION OF STATES ENGINEERING CORPORATION

179 Ga. App. 128 (1986)

345 S.E.2d 666

ADVANCED CONTOURING, INC. v. McMILLAN DIVISION OF STATES ENGINEERING CORPORATION.

71995.

Court of Appeals of Georgia.

Decided May 16, 1986.

Herbert P. Schlanger, for appellant.

T. Gordon Lamb, for appellee.

McMURRAY, Presiding Judge.

Plaintiff McMillan Division of States Engineering Corporation brought this action against Advanced Contouring, Inc. to recover $3,516.90 plus interest for goods sold on account. The defendant admitted that it had received the goods from the plaintiff and that it had not paid for the goods. Based on these admissions, the plaintiff moved for summary judgment.

While the motion for summary judgment was pending, the plaintiff amended its complaint alleging that the defendant owed the additional sum of $4,456.50 plus interest for goods received on con-signment.

After a hearing, the trial court granted partial summary judgment in favor of the plaintiff in the amount of $3,516.90, plus interest, for the goods received by the defendant on account. The defendant appeals. Held:

1. In his first enumeration of error the defendant argues that the trial court's grant of partial summary judgment was erroneous because the plaintiff's amended complaint raised genuine issues of material fact as to whether the goods received on consignment were the same goods as those received on account. This argument is without merit. The defendant admitted that it had received the goods on account and that it had not paid for the goods. Consequently, the trial court properly granted summary judgment for the plaintiff with regard to the goods the defendant received on account. (The order granting partial summary judgment in favor of the plaintiff does not preclude the defendant from presenting any defenses it may have in the action brought by the plaintiff for the goods received on consignment.)

*129 2. Both the plaintiff and defendant argue that the order granting partial summary judgment was not a final order because the trial court did not make an express finding that there was "no just reason for delay." See OCGA § 9-11-54 (b). The plaintiff seeks to dismiss this appeal and the defendant seeks an order vacating the trial court's order granting plaintiff partial summary judgment.

"Even in the absence of `an express determination that there is no just reason for delay' [OCGA § 9-11-54 (b)] the order granting the partial summary judgment is nevertheless appealable. [OCGA § 9-11-56 (h).] (Cit.)" Anderson v. Automatic Sprinkler Corp., 147 Ga. App. 236 (1) (248 SE2d 507), reversed on other grounds, Automatic Sprinkler Corp. v. Anderson, 243 Ga. 867 (257 SE2d 283). See Newton v. K. B. Property Mgt. of Ga., 166 Ga. App. 901, 902-903 (306 SE2d 458). Consequently, the plaintiff's motion to dismiss the defendant's appeal is denied. We also find the defendant's argument to be without merit. The trial court did not err in granting partial summary judgment in favor of plaintiff.

Judgment affirmed. Carley and Pope, JJ., concur.