dissenting.
I respectfully dissent from the partial affirmance of summary judgment on behalf of plaintiff Namano, Inc., in this action to collect a debt. Defendants James Haughton and Donna Haughton defended, in part, on the basis that certain payments, undeniably made, were unilaterally and improperly attributed to other so-called “sub accounts.” In my view, the majority errs in affirming summary judgment as to liability on the basis of OCGA § 13-4-42, based upon plaintiff’s affidavit that the amounts paid by defendants were unilaterally attributed to such “sub accounts.” Defendants, as debtors, were authorized to believe that these payments were being credited to the account here sued on, reasonably relying upon plaintiff’s admitted practice of billing all items only under the single account, “maintained under customer number 34535.” The trier of fact may infer from the amount of the check that each was in payment of the specific account sued on in this action, since that is what defendants intended. “It is not necessary [under former Code § 20-1006, now OCGA § 13-4-42] that express directions shall be given, [and] if the facts and circumstances indicate the intention of the parties at the time the payment is presented, the law will direct credit of the payment accordingly where the intent is clear.” Roswell Bank v. Bearse, 118 Ga. App. 610 (164 SE2d 886). I would further hold that defendants’ evidence is sufficient to create a genuine issue of material fact as to whether this Code section even applies under the terms of the consignment contracts among plaintiff and defendants. It is not the defendants’ duty, under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) to explain the plaintiff’s unilateral attribution of pay-*648merits made. Rather, it is sufficient for the non-movant to establish a genuine issue of material fact, with the onus on the movant to make any further reply. Since, in my view, plaintiff has failed to establish the non-existence of several material fact questions, I respectfully dissent from the affirmance of summary judgment as to defendants’ liability.
Decided August 30, 1996. Bowles & Bowles, Jesse G. Bowles III, for appellants. Stokes, Lazarus & Carmichael, Marion B. Stokes, Richard J. Joseph, for appellee.