concurring specially.
This is indeed a close case because appellant makes a strong and persuasive argument that what appellee did with regard to compliance with the notice requirements of OCGA § 36-82-104 (b) was too little and too late. However, the case is before us as a result of the denial of appellant’s motion for summary judgment and the conclusion of the majority is that “[c]onstruing the facts most favorably to appellee as the party opposing summary judgment. . . there remains a question of fact whether the writing (i.e., the invoices), in connection with appellee’s president’s testimony, ‘brought home’ the indebtedness to the general contractor.” With the procedural status of the case in mind, I concur in the majority’s holding.
However, one of the authorities relied upon by the majority is Houston Fire &c. Ins. Co. v. United States, 217 F2d 727 (5th Cir. 1954). I do not believe that the factual situation here involved comes within the holding in Houston because in Houston, after the oral discussions between the claimant and the general contractor, there was a written acknowledgment of that discussion from the general contractor to the claimant acknowledging the indebtedness and indicating the payment “should be forthcoming within a few days.” We do not have such written acknowledgment in this case. However, the majority also relies upon Coffee v. United States, 157 F2d 968 (5th Cir. 1946) and Coffee “made it clear” to the Houston court that “what was done in this case was a sufficient compliance with [the statute].” Houston, supra, 730. In Coffee, the court held that “a writing containing the information which the statute requires, exhibited to the contractor by the claimant as a notice of his claim and which the contractor examines and discusses and might have taken if desired, is a written notice sufficiently served.” Coffee, supra, 970. In this case, the affidavit of Jimmy Foster states that “after we had discussed the amount owed, the invoice documents were returned to me though I intended for [agents of appellant] to keep copies of them for their own files.” Although the affidavits of appellant throw a different light upon this meeting, it clearly appears that there is sufficient evidence in the record to find that there remained genuine issues of material fact with regard to the giving of the required notice and, therefore, the trial court correctly denied summary judgment.
Jeffrey L. Sakas, for appellee.