The following rules, among others, shall be used in arriving at the true interpretation of contracts:
(Orig. Code 1863, §§ 1, 2721; Code 1868, §§ 1, 2715; Code 1873, § 1, 2757; Code 1882, §§ 1, 2757; Civil Code 1895, §§ 1, 3675; Civil Code 1910, §§ 1, 4268; Code 1933, § 20-704; Ga. L. 1962, p. 156, § 1; Ga. L. 1963, p. 188, § 38; Ga. L. 1964, p. 414, § 1; Ga. L. 2010, p. 878, § 13/HB 1387.)
The 2010 amendment, effective June 3, 2010, part of an Act to revise, modernize, and correct the Code, added "and" at the end of paragraph (8).
Law reviews.- For article, "The Parol Evidence Rule in Georgia," see 17 Ga. B.J. 49 (1954). For article, "The Parol Evidence Rule in Georgia - Part Two," see 17 Ga. B.J. 184 (1954). For article noting the effect of local business custom on warranties under the U.C.C., see 1 Ga. St. B.J. 191 (1964). For article discussing the advantages of contract rescission as a remedy for fraud, with respect to the parol evidence rule and the statute of frauds, in light of City Dodge, Inc. v. Gardner, 232 Ga. 766, 208 S.E.2d 794 (1974), see 11 Ga. St. B.J. 172 (1975). For article discussing interpretation in Georgia of insurance policies containing evidentiary conditions, see 12 Ga. L. Rev. 783 (1978). For article discussing parol evidence in the law of commercial paper, see 13 Ga. L. Rev. 53 (1978). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article, "Trial Practice and Procedure," see 53 Mercer L. Rev. 475 (2001). For annual survey of labor and employment law, see 56 Mercer L. Rev. 291 (2004). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For note, "Misrepresentations and Nondisclosures in the Insurance Application," see 13 Ga. L. Rev. 876 (1979). For comment on Buchanan v. Hieber, 78 Ga. App. 434, 50 S.E.2d 815 (1948), see 12 Ga. B.J. 67 (1949). For comment on West View Corp. v. Alston, 208 Ga. 122, 65 S.E.2d 406 (1951), see 14 Ga. B.J. 230 (1951). For comment on Fisher v. J.A. Jones Constr. Co., 87 Ga. App. 317, 73 S.E.2d 587 (1952), see 4 Mercer L. Rev. 374 (1953). For comment on Burdines, Inc. v. Pan-Atlantic S.S. Corp., 199 F.2d 577 (5th Cir. 1952), an admiralty case treating a rubber stamp as a means of writing in construing a contract, see 4 Mercer L. Rev. 376 (1953).
JUDICIAL DECISIONSANALYSIS
Cited in Schinazi v. Eden, 338 Ga. App. 793, 792 S.E.2d 94 (2016); Howard v. Howard, 302 Ga. 451, 807 S.E.2d 379 (2017); Epstein, Becker & Green, P.C. v. Anduro Holdings, LLC, 346 Ga. App. 874, 816 S.E.2d 695 (2018); Schaffeld v. Schaffeld, 349 Ga. App. 688, 824 S.E.2d 735 (2019), cert. denied, No. S19C1082, 2019 Ga. LEXIS 887 (Ga. 2019).
1. Application in General
Construction of "applicant".
- Appellate court erred by concluding that a guaranty was unenforceable for not sufficiently identifying the name of the principal debtor and thus failing to satisfy the Statute of Frauds, O.C.G.A. § 13-5-30(2), because the word applicant, bearing its usual and common meaning, identified the company applying for credit and, therefore, clearly identified the company as the principal debtor. Lafarge Bldg. Materials, Inc. v. Thompson, 295 Ga. 637, 763 S.E.2d 444 (2014).
Construction of word "void".- When a bank sought relief from the automatic stay to proceed with a sheriff's sale under a prepetition state court consent judgment that resolved a fraudulent transfer action against the debtor and others by declaring the transfer "void," the court denied the motion as unnecessary. No interest in the property revested in the debtor because, applying rules of contract construction to the consent judgment, and giving the consent judgment a construction that rendered the judgment in compliance with Georgia fraudulent transfer statutes, the court determined that the word "void" meant void as to the bank, not void ab initio. Southeastern Bank v. Allen (In re Allen), Bankr. (Bankr. S.D. Ga. June 5, 2017).
Construction of employee dishonesty insurance contract provision.
- Appellate court properly determined that an insured was only entitled to one cumulative policy limit for a loss due to embezzlement by an employee; upon consideration pursuant to O.C.G.A. § 13-2-2, the insurance policy in question stated that the insurer would only pay for one occurrence during the policy term, and the acts of the employee constituted one occurrence as defined by the policy. Sherman & Hemstreet, Inc. v. Cincinnati Ins. Co., 277 Ga. 734, 594 S.E.2d 648 (2004).
Construction impermissible where language capable of only one reasonable interpretation.
- No construction is required or even permissible when language employed by parties to contract is plain, unambiguous, and capable of only one reasonable interpretation. R.S. Helms, Inc. v. GST Dev. Co., 135 Ga. App. 845, 219 S.E.2d 458 (1975); Merrill Lynch, Pierce, Fenner & Smith v. Stidham, 506 F. Supp. 1182 (M.D. Ga. 1981), aff'd in part, vacated in part on other grounds, 658 F.2d 1098 (5th Cir. 1981).
Term "waste" in a royalty fees contract was unambiguous and was properly given the term's plain and ordinary meaning pursuant to O.C.G.A. § 13-2-2(2). Had the parties intended the contract to include solid waste, a term commonly used in the waste management industry, the parties could have inserted the word "solid" before the word "waste," but the parties did not. Wilkening v. Veolia Es Evergreen Landfill, Inc., F.3d (11th Cir. Oct. 2, 2012)(Unpublished).
It was error for a trial court to apply the rules of contract construction to a contract which clearly and unambiguously provided that a customer was not obligated to pay its supplier for services if the customer's client did not pay the customer for those services. Blueshift, Inc. v. Advanced Computing Techs., Inc., 273 Ga. App. 802, 616 S.E.2d 816 (2005).
Construction of waiver provision in contract.
- Upon construction of a contract between an independent contractor and a billboard owner under O.C.G.A. § 13-2-2, because: (1) it was clear that the contractor did not waive any right to recover against the owner under any possible scenario, but only waived a right to recover against the owner's predecessor for damages if the waiver did not invalidate the insurance coverage; and (2) the contract only waived the owner's liability if the waiver did not invalidate the contractor's insurance, summary judgment was erroneously entered to the owner on grounds that the contractor waived a right to recover from the owner and because the trial court failed to consider whether the waiver invalidated the contractor's insurance. Holmes v. Clear Channel Outdoor, Inc., 284 Ga. App. 474, 644 S.E.2d 311 (2007).
In contract dispute not involving language of contract, parties bound by writing.
- In dispute over meaning of contract and subsequent acts of parties during contract's execution, which is not over language of contract, party is bound by what has been reduced to writing. R.S. Helms, Inc. v. GST Dev. Co., 135 Ga. App. 845, 219 S.E.2d 458 (1975).
In an action regarding an alleged breach of an employment contract seeking commissions on deals made by a real estate agent that a former real estate broker alleged it was entitled to, after a plain reading of the unambiguous contract, the trial court erred in entering summary judgment against the agent, finding that the agent owed the broker commissions as to one of two contested deals, because: (1) the agent closed the deal with that client after terminating employment with the broker; and (2) it was undisputed that the agent had not agreed to share commissions with the broker on deals struck after the agent left the broker's employ; thus, since summary judgment was properly entered in the agent's favor regarding commissions paid to the agent as to the second of the two contested clients, the broker was not entitled to litigation costs under O.C.G.A. § 13-6-11. Morgan v. Richard Bowers & Co., 280 Ga. App. 533, 634 S.E.2d 415 (2006).
Rules of construction invoked by Court of Appeals only where raised by assignment of error.
- Whatever may be application of rules of construction of contracts as a whole on issues before trial court, such application is invoked by Court of Appeals only to extent, directly or indirectly, that it may be raised by assignment of error, preserving for review any or all of those issues. Boston Ins. Co. v. Harmon, 66 Ga. App. 383, 18 S.E.2d 84 (1941).
Plain language of contract upheld.
- In a breach of contract action filed by an employee, who was a third-party beneficiary to an employment contract with a contractor, the trial court erred in granting the employee summary judgment as: (1) under the plain language of the employment agreement at issue between the parties, as well as the county's personnel policy, the contractor was authorized to terminate the employee based on the employee's inability or unfitness to perform the assigned duties due to an injury; and (2) the employee could not perform all the job's requirements. Am. Water Serv. USA v. McRae, 286 Ga. App. 762, 650 S.E.2d 304 (2007), cert. denied, 2007 Ga. LEXIS 761 (Ga. 2007).
In a declaratory judgment action between a water utility and residents of a subdivision, given that the residents had standing to sue on a contract for the provision of water services as incidental beneficiaries, the trial court erred in finding that the utility was charging the appropriate rates thereunder; but, the utility was allowed to increase the utility's minimum annual fee and, given the clear and ambiguous language of the contract, enforce a restrictive covenant. Alday v. Decatur Consol. Water Servs., 289 Ga. App. 902, 658 S.E.2d 476 (2008).
Trial court properly granted summary judgment to a condominium association member in an action by the association, seeking to resolve a dispute between the parties as to the proper manner of assessing expenses for the common elements of the condominium development as the declaration restricted limited common element expenses to a special assessment among the assigned unit owners, apart from the general common expenses that were to be divided among all unit owners; that interpretation of the declaration reflected the meaning of the entire document pursuant to O.C.G.A. § 13-2-2(4). Museum Tower Condo. Ass'n v. Children's Museum of Atlanta, Inc., 297 Ga. App. 84, 676 S.E.2d 448 (2009).
In a breach of contract suit between a licensee of certain patents and a licensor, the licensor's sale of the licensor's assets did not violate the parties' agreement because the plain language of the agreement permitted a sale to a certain entity without notice to the licensee, and the licensee's interpretation of the contract to the contrary did not involve construing the contract as a whole, as required by O.C.G.A. § 13-2-2(4). Ip Co., LLC v. Cellnet Tech., Inc., F. Supp. 2d (N.D. Ga. Sept. 28, 2009).
Trial court properly granted a condominium association summary judgment in a premises liability action because interpreting the condominium association documents established that the association did not have a duty to remove snow and ice from the common walkway where the resident fell. Scrocca v. Ashwood Condominium Ass'n, 326 Ga. App. 226, 756 S.E.2d 308 (2014).
Federal court construing language not previously construed in Georgia to use rules of the Georgia Code.- Where interpretation of contractual language has been differently construed by courts of different jurisdictions but not previously construed by Georgia courts, thus making construction doubtful, rules of interpretation of contracts, as found in the Georgia Code are properly applicable by federal court. Boston Ins. Co. v. Gable, 352 F.2d 368 (5th Cir. 1965).
Contract between spouses to settle question of alimony subject to usual rules of construction.
- Where contract between husband and wife in divorce suit was entered into for purpose of settling question of alimony, the contract's meaning and effect should be determined according to usual rules for construction of contracts, the cardinal rule being to ascertain intention of parties. Brown v. Farkas, 195 Ga. 653, 25 S.E.2d 411 (1943).
Entirety of an agreement should be looked to in arriving at the construction of any part; a requirement in a divorce settlement agreement that the husband pay money to the wife, with or without a sale of the marital home, was not conditional. Horwitz v. Weil, 275 Ga. 467, 569 S.E.2d 515 (2002).
Construction of settlement agreement in divorce actions.
- Language of second divorce settlement agreement that stated certain property belonged to the former husband and was not marital property subject to division, and that the former husband and the former wife agreed to release each other from any and all obligations whatsoever against each other unambiguously meant that the former wife released the former husband from any claim to any equity interest in the property despite the fact that an earlier divorce settlement agreement provided for the wife to receive an equity interest in the property under certain circumstances. Barnett v. Platz, 261 Ga. App. 51, 581 S.E.2d 682 (2003).
Decedent died before changing the beneficiary of an IRA, the decedent's ex-spouse. A provision in a divorce settlement agreement stating that the ex-spouse relinquished all claims to any IRAs titled in the decedent's name was sufficiently broad to waive the ex-spouse's beneficiary designation and to release the ex-spouse's expectancy interest in the IRA; thus, the proceeds of the IRA belonged to the decedent's estate. Young v. Stump, 294 Ga. App. 351, 669 S.E.2d 148 (2008).
Visitation provision of consent order.
- It was error under O.C.G.A. § 13-2-2 to rule that under a consent order, a father was entitled to an extension of holiday visitation into a weekend preceding or following a holiday. No provision of the consent order allowed a merger of holiday visitation with standard weekend visitation; since the consent order contained specific, unambiguous language governing how holiday visitation was to be exercised, that language controlled whenever the father elected to take advantage of holiday visitation instead of weekend visitation. Immel v. Immel, 298 Ga. App. 424, 680 S.E.2d 505 (2009).
Construction of divorce settlement agreement with periodic alimony.
- Summary judgment was properly granted to a former husband in his declaratory judgment action, seeking a determination that his obligation to make "periodic alimony" payments for his former wife's car payments pursuant to the parties' divorce settlement agreement ceased upon the wife's remarriage pursuant to O.C.G.A. § 19-6-5(b), as the settlement agreement was clear and unambiguous in its designation of certain payments as a form of periodic alimony rather than as equitable distribution; contract interpretation principles under O.C.G.A. §§ 13-2-2(4) and13-2-3 supported that interpretation of the agreement. Crosby v. Lebert, 285 Ga. 297, 676 S.E.2d 192 (2009).
Meaning and effect of will, contract, or pleading to be ascertained by language employed in document's preparation. Brantley Co. v. Briscoe, 246 Ga. 310, 271 S.E.2d 356 (1980).
Simple ambiguity does not render contract unenforceable if explainable from attendant and surrounding circumstances. Indian Trail Village, Inc. v. Smith, 139 Ga. App. 691, 229 S.E.2d 508 (1976).
Where more than one meaning is reasonable, one serving public interest to be preferred.
- In choosing among reasonable meanings of promise or agreement or term thereof, meaning that serves public interest is generally preferred. Clear-VU Cable, Inc. v. Town of Trion, 244 Ga. 790, 262 S.E.2d 73 (1979).
A limited or specific provision will prevail over one that is more broadly inclusive. Griffin v. Barrett, 155 Ga. App. 509, 271 S.E.2d 647 (1980).
Applying Georgia's rules of contract construction, derived from statute and case law, an ambiguity in a multi-bank loan participation agreement was resolved in the lead bank's favor because one section overrode another on the issue of whether to sell the loan in that the contract specifically addressed that issue and so prevailed over conflicting general language. Stonegate Bank v. TD Bank, N.A., F.3d (11th Cir. Jan. 6, 2015)(Unpublished).
Deficiency in contract caused by indefiniteness or lack of mutuality is cured by performance. Self v. Smith, 98 Ga. App. 876, 107 S.E.2d 721 (1959).
Law will not make contract for parties which is different from the contract executed by the parties. Sellers v. Alco Fin., Inc., 130 Ga. App. 769, 204 S.E.2d 478 (1974).
Rights and liabilities flowing from simultaneous contracts may not be considered in isolation from each other. Barton v. Olshan, 244 Ga. 341, 260 S.E.2d 83 (1979).
Contract to be construed as whole and no part discarded if avoidable preference for upholding contracts.
- When a tenant which terminated the tenant's lease early and agreed to pay the landlord the difference between the tenant's rental obligation and rent the landlord was able to obtain from a third party this agreement was a guaranty from which the tenant had been discharged, the landlord was entitled to partial summary judgment on the landlord's breach of contract claim in the landlord's suit to enforce the agreement, because the agreement was not a guaranty subject to the discharge provisions of O.C.G.A. § 10-7-20 et seq., as the tenant did not agree to be answerable for the debt of another but, instead, agreed to continue the tenant's rental obligation to the landlord, subject to any credit the tenant might be entitled to for rent the landlord received from a third party, and the use of the phrase "Lessee guarantees" in the contract did not make it a guaranty because, under O.C.G.A. § 13-2-2(4), the whole contract was to be looked at in determining the meaning of any part. Equifax, Inc. v. 1600 Peachtree, L.L.C., 268 Ga. App. 186, 601 S.E.2d 519 (2004).
In an action arising from an alleged breach of a nonsolicitation covenant within a consultant agreement, because the employee subject to the covenant understood the covenant to apply only to those clients the employee's employer acquired when the employer bought the employee's former company, or with whom the employee had material contact during the course of the employment, the trial court misconstrued the agreement by limiting the agreement's scope, and the employer was erroneously granted summary judgment based on the employee's alleged breach. Atl. Ins. Brokers, LLC v. Slade Hancock Agency, Inc., 287 Ga. App. 677, 652 S.E.2d 577 (2007).
Option contracts for sale of realty require same degree of definiteness as general contracts; required definiteness includes such matters as price, and terms of payment; contract must either state price to be paid for property or set forth criteria by which the price may be calculated. Wiley v. Tom Howell & Assocs., 154 Ga. App. 235, 267 S.E.2d 816 (1980).
Real estate contract viewed as whole.
- Clause in a real estate sale contract that stated no claims or legal actions were pending could not be construed to be a blanket representation that the seller was not aware of any facts that might cause the buyer not to go forward with the transaction since under O.C.G.A. § 13-2-2(4) a court must construe a contract to uphold the contract in whole and in every part. Savage v. KGE Assocs., L.P., 260 Ga. App. 770, 580 S.E.2d 591 (2003).
Trial court acted properly in determining whether the property buyer was entitled to specific performance of the property seller's obligation in the purchase and sales agreement to execute a restrictive covenant by examining the whole contract in determining whether the parties intended that the obligation to execute the restrictive covenant survive the real estate closing as the parties had agreed in an addendum signed at the time of the closing that they intended unfulfilled obligations under the agreement to survive the closing, and only by examining the whole contract was the trial court able to determine the parties' intention that the obligation to execute the restrictive covenant survived the closing. Neely Dev. Corp. v. Serv. First Invs., Inc., 261 Ga. App. 253, 582 S.E.2d 200 (2003).
Express easement in deed construed.
- Subsequent property owner was properly held to have a duty, pursuant to an express easement in a deed, to maintain and repair a sewer line that traversed an adjoining property owner's land because the easement was unambiguous and provided for the maintenance of all sewer lines on the easement, regardless of when the sewer lines were built. Kammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 740 S.E.2d 635 (2012), overruled on other grounds, 322 Ga. App. 859, 747 S.E.2d 68 (2013).
Earnest money.
- Trial court erred in granting summary judgment, pursuant to O.C.G.A. § 9-11-56(c), to a seller in an action to recover earnest money for the sale of a shopping center; the purchaser was entitled to the return of the money because the purchaser could not obtain financing, which was a condition for the return of the money under the terms of the contract, interpreted pursuant to O.C.G.A. §§ 13-2-1 and13-2-2. Ali v. Aarabi, 264 Ga. App. 64, 589 S.E.2d 827 (2003).
When instruments are executed at same time in course of same transaction, the instruments should be read and construed together. Interstate Fire Ins. Co. v. National Indem. Co., 157 Ga. App. 516, 277 S.E.2d 802 (1981).
Incorporation of promissory notes into contract.- Unless a lease agreement expressly provides that the rent is to be paid by promissory notes, the notes do not become a part of the contract, and cannot be considered in determining the intention of the parties where the contract is not ambiguous. Brackin Tie, Lumber & Chip Co. v. McLarty Farms, Inc., 95 F.R.D. 328 (S.D. Ga. 1982), aff'd, 704 F.2d 585 (11th Cir. 1983).
Two insurance policies containing escape clauses in event of other insurance, to be read together.
- Just as contract must be read as a whole, two or more insurance contracts from different companies applicable to single occurrence, each containing escape clauses in event of other insurance covering same occurrence, or each limited to excess of other policies covering same occurrence must be read together in order to arrive at true interpretation. Southern Home Ins. Co. v. Willoughby, 124 Ga. App. 162, 182 S.E.2d 910 (1971).
Contemporaneous written agreements properly construed together.
- In a breach of contract action arising from a guaranty agreement between a guarantor and a retail space owner, the trial court properly granted summary judgment in the owner's favor, as the court properly construed contemporaneous written agreements, which were executed on the same date, at the same time, and at the same location, despite a misnomer contained therein, as such did not render the agreement unenforceable. Thus, it was not erroneous for the court to correct an obvious error in the agreement, specifically, the failure to substitute one entity's name for another as the parties intended, and interpret the guaranty accordingly. C.L.D.F., Inc. v. Aramore, LLC, 290 Ga. App. 271, 659 S.E.2d 695 (2008), cert. denied, No. S08C1224, 2008 Ga. LEXIS 668 (Ga. 2008).
Covenant not to sue positively reserving right to sue parties not named clearly expresses intent.
- Covenant not to sue which not only expressly names covenantees, but positively reserves right to proceed against any other party not named in covenant, is clear expression of intent and must be recognized to mean what it says. Brantley Co. v. Briscoe, 246 Ga. 310, 271 S.E.2d 356 (1980).
Merger clause stating that it was the intent of the parties that the agreement superseded all precontractual agreements and representations, both oral and written, precluded a claim by one party that the other party's pre-contractual representations amounted to theft by deception. First Data POS, Inc. v. Willis, 273 Ga. 792, 546 S.E.2d 781 (2001).
Nonrenewal not considered termination of contract where parties dealt with each separately.
- While conceptually nonrenewal might be considered a form of contract termination, this categorization is of no consequence where parties to agreement deal with nonrenewal and termination as separate matters. Kushner v. Southern Adventist Health & Hosp. Sys., 151 Ga. App. 425, 260 S.E.2d 381 (1979).
Construction of clause abating rent in event of casualty to premises.
- Where lease of realty premises contains provisions that if premises are damaged by storm, fire, earthquake, or other casualty, but not rendered wholly untenantable, rental shall abate in proportion as premises have been damaged, properly construed the provision means that stipulated rent shall be reduced in proportion to amount of damages premises have undergone during period premises remained thus damaged. Buchanan v. Hieber, 78 Ga. App. 434, 50 S.E.2d 815 (1948).
Recovery in quantum meruit.- Georgia follows the English rule which allows recovery in quantum meruit by a plaintiff who is in substantial breach of the contract, as long as the breach is not willful or deliberate. Anderson v. Golden, 569 F. Supp. 122 (S.D. Ga. 1982).
It was error for a trial court to find, in a contract dispute, that a supplier was entitled to recover from its non-paying customer in quantum meruit because the parties' dispute was controlled by the terms of their express contract. Blueshift, Inc. v. Advanced Computing Techs., Inc., 273 Ga. App. 802, 616 S.E.2d 816 (2005).
Forum selection clause.
- Trial court erred in finding that the court lacked jurisdiction over a successor lessor in an action by a guarantor of a lessee's obligation, based on an alleged false credit report of the guarantor, where the jurisdiction clause of the lease did not designate an exclusive forum for bringing the suit; rather, the clause simply permitted suit to be brought in a place where jurisdiction and venue might not otherwise have been proper, but it did not dictate the forum, based on contract interpretation principles pursuant to O.C.G.A. § 13-2-2(5). Carbo v. Colonial Pac. Leasing Corp., 264 Ga. App. 785, 592 S.E.2d 445 (2003).
Trial court erred in granting a debtor's motion to transfer a bank's action alleging breach of a loan agreement and promissory note because the trial court's focus solely on the note and the note's venue clause was in contradiction of O.C.G.A. § 13-2-2(4); the promissory note was a loan document subject to the document protocols that were attached to the loan agreement, and no showing was contained in the record that the forum selection clause in the document protocols was unenforceable. Park Ave. Bank v. Steamboat City Dev. Co., 317 Ga. App. 289, 728 S.E.2d 925 (2012).
Ambiguity existed as to whether property was to be included in listing agreement.
- See International Bus. Invs., Inc. v. Archer Motor Co., 187 Ga. App. 97, 369 S.E.2d 268 (1988).
Ambiguity existed in first right of refusal contract.
- Trial court correctly determined that there was an ambiguity in the terms of a first right of refusal contract, and correctly found that the intent of the parties and the "dominant purpose" of the contract was to give the husband the opportunity to purchase all or any portion of certain property before the wife was allowed to sell the property to another. Coker v. Coker, 265 Ga. App. 720, 595 S.E.2d 556 (2004).
Construction of condition precedent in agency contract.
- Title insurance company was entitled to judgment as a matter of law on a real estate firm's counterclaim for breach of contract claim because the agency contract as amended in 2004 clearly and unambiguously required the firm to remit 25 percent of the gross title premiums it collected as a condition precedent to the rebate provision, which construction both upheld the plain language of the agreement and comported with common sense. Dewrell Sacks, LLP v. Chicago Title Insurance Co., 324 Ga. App. 219, 749 S.E.2d 802 (2013).
Teachers' contractual right to notice before pension reduction harmonized with later plan.
- In a suit by teachers against the county school district and board alleging breach of contract, summary judgment for the defendants was error because by adopting a promise to give two years' notice before reducing funding of a retirement plan as board policy, the notice provision became part of the teachers' contracts; this could be harmonized with later documents adopting different retirement plans. Gold v. DeKalb County Sch. Dist., 346 Ga. App. 108, 815 S.E.2d 259 (2018), aff'd, 307 Ga. 330, 834 S.E.2d 808 (2019).
Standard of review.
- The appellate court will presume that a trial court proceeded properly, even where the record does not clearly reveal the process employed in construing a contract to determine if it is ambiguous. Alpha Beta Dickerson Southeastern, Inc. v. White Co., 235 Ga. App. 273, 509 S.E.2d 351 (1998).
Cited in Jackson v. Carswell, 34 Ga. 279 (1866); Fletcher & Bullock v. Young, 69 Ga. 591 (1882); Patterson v. Ramspeck & Green, 81 Ga. 808, 10 S.E. 390 (1888); Macon & B.R.R. v. Gibson, 85 Ga. 1, 11 S.E. 442, 21 Am. St. R. 135 (1890); Singer v. Grand Rapids Match Co., 117 Ga. 86, 43 S.E. 755 (1903); Lytle v. Scottish Am. Mtg. Co., 122 Ga. 458, 50 S.E. 402 (1905); Muscogee Mfg. Co. v. Eagle & Phenix Mills, 126 Ga. 210, 54 S.E. 1028, 7 L.R.A. (n.s.) 1139 (1906); Bowen v. E. A. Waxelbaum & Bro., 2 Ga. App. 521, 58 S.E. 784 (1907); Vanzant v. Bank of Abbeville, 2 Ga. App. 763, 59 S.E. 85 (1907); Dozier v. Davison & Fargo, 138 Ga. 190, 74 S.E. 1086 (1912); Mill Wood & Coal Co. v. Flint River Cypress Co., 16 Ga. App. 636, 85 S.E. 943 (1915); Peacock v. Savannah Woodenware Co., 18 Ga. App. 127, 88 S.E. 906 (1916); Verdery v. Withers, 30 Ga. App. 63, 116 S.E. 894 (1923); Horne & Ponder v. Evans, 31 Ga. App. 370, 120 S.E. 787 (1923); Keith v. Chastain, 157 Ga. 1, 121 S.E. 233 (1923); Irvin v. New Brunswick Fire Ins. Co., 32 Ga. App. 182, 122 S.E. 710 (1924); Rogers-Morgan Co. v. Webb, 34 Ga. App. 424, 130 S.E. 78 (1925); Palmer, Phinizy & Connell v. Heinzerling, 34 Ga. App. 544, 130 S.E. 537 (1925); Miller v. First Nat'l Bank, 35 Ga. App. 334, 132 S.E. 783 (1926); Continental Life Ins. Co. v. Wells, 38 Ga. App. 99, 142 S.E. 900 (1928); Bernstein v. Fagelson, 38 Ga. App. 294, 143 S.E. 237 (1928); Nolan v. Calhoun, 38 Ga. App. 227, 143 S.E. 606 (1928); Napier v. Pool, 39 Ga. App. 187, 146 S.E. 783 (1929); Sewell v. Armour Fertilizer Works, Inc., 39 Ga. App. 516, 147 S.E. 717 (1929); American Cas. Co. v. Cohen, 40 Ga. App. 593, 151 S.E. 56 (1929); Wellhouse v. Central Leases, Inc., 41 Ga. App. 731, 154 S.E. 708 (1930); Fireman's Fund Ins. Co. v. Davis, 42 Ga. App. 49, 155 S.E. 105 (1930); Holloway v. Brown, 171 Ga. 481, 155 S.E. 917 (1930); White v. Cook, 171 Ga. 663, 156 S.E. 657 (1931); Kitchens v. Noland, 172 Ga. 684, 158 S.E. 562 (1931); Buffalo Forge Co. v. Southern Ry., 43 Ga. App. 445, 159 S.E. 301 (1931); Rich-Garrison Motor Co. v. Hicks, 43 Ga. App. 834, 160 S.E. 547 (1931); Southern Brighton Mills v. Taber Mill, 44 Ga. App. 513, 162 S.E. 515 (1931); Philips v. Philips, 174 Ga. 413, 162 S.E. 672 (1932); Glass v. Grant, 46 Ga. App. 327, 167 S.E. 727 (1933); King v. Smith, 47 Ga. App. 360, 170 S.E. 546 (1933); Weems v. Des Portes, 47 Ga. App. 546, 171 S.E. 182 (1933); Tyus v. Duke, 178 Ga. 800, 174 S.E. 527 (1934); Greeson v. F & M Bank, 50 Ga. App. 566, 179 S.E. 191 (1935); Cocke v. Bank of Dawson, 180 Ga. 714, 180 S.E. 711 (1935); Carver v. Leach, 53 Ga. App. 112, 185 S.E. 155 (1936); Williamson-Inman & Co. v. Thompson, 53 Ga. App. 821, 187 S.E. 194 (1936); Atlantic Fertilizer Co. v. Southern States Phosphate & Fertilizer Co., 53 Ga. App. 798, 187 S.E. 237 (1936); Allen v. Dickey, 54 Ga. App. 451, 188 S.E. 273 (1936); Trippe v. Crescent Farms, Inc., 58 Ga. App. 1, 197 S.E. 330 (1938); Macon Gas Co. v. Crockett, 58 Ga. App. 361, 198 S.E. 267 (1938); American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150 (1938); Beavers v. Le Sueur, 188 Ga. 393, 3 S.E.2d 667 (1939); United States Fid. & Guar. Co. v. Skinner, 188 Ga. 823, 5 S.E.2d 9 (1939); Williams v. Bernath, 61 Ga. App. 350, 6 S.E.2d 184 (1939); Whitfield v. Maddox, 189 Ga. 870, 8 S.E.2d 57 (1940); Brooke v. Dellinger, 193 Ga. 66, 17 S.E.2d 178 (1941); Sparks v. Sparks, 193 Ga. 368, 18 S.E.2d 556 (1942); In re Cent. of Ga. Ry., 47 F. Supp. 786 (S.D. Ga. 1942); Hardware Mut. Cas. Co. v. Collier, 69 Ga. App. 235, 25 S.E.2d 136 (1943); Nichols v. Ocean Accident & Guarantee Corp., 70 Ga. App. 169, 27 S.E.2d 764 (1943); Progressive Life Ins. Co. v. Smith, 71 Ga. App. 157, 30 S.E.2d 411 (1944); Mutual Life Ins. Co. v. Barron, 198 Ga. 1, 30 S.E.2d 879 (1944); McWane Cast Iron Pipe Co. v. Barrett, 72 Ga. App. 161, 33 S.E.2d 528 (1945); Albany Fed. Sav. & Loan Ass'n v. Henderson, 200 Ga. 79, 36 S.E.2d 330 (1945); Irvin v. Locke, 200 Ga. 675, 38 S.E.2d 289 (1946); Lively v. Munday, 201 Ga. 409, 40 S.E.2d 62 (1946); Warehouses, Inc. v. Wetherbee, 203 Ga. 483, 46 S.E.2d 894 (1948); Marsh v. Baird, 203 Ga. 819, 48 S.E.2d 529 (1948); Sampson v. General Elec. Supply Corp., 78 Ga. App. 2, 50 S.E.2d 169 (1948); Childs v. Hampton, 80 Ga. App. 748, 57 S.E.2d 291 (1950); Finney v. Blalock, 206 Ga. 655, 58 S.E.2d 429 (1950); Touchstone v. Louis Friedlander & Sons, 81 Ga. App. 489, 59 S.E.2d 281 (1950); Millender v. Looper, 82 Ga. App. 563, 61 S.E.2d 573 (1950); Blanchard & Calhoun Realty Co. v. Fogel, 207 Ga. 602, 63 S.E.2d 382 (1951); Smith v. Smith, 208 Ga. 300, 66 S.E.2d 711 (1951); Thomas v. Eason, 208 Ga. 822, 69 S.E.2d 729 (1952); Petkas v. Wright Co., 87 Ga. App. 189, 73 S.E.2d 224 (1952); Plaza Hotel Co. v. Fine Prods. Corp., 87 Ga. App. 460, 74 S.E.2d 372 (1953); Moore v. Johnson, 89 Ga. App. 164, 78 S.E.2d 823 (1953); Lander Motors, Inc. v. Lee Tire & Rubber Co., 89 Ga. App. 194, 78 S.E.2d 839 (1953); Carter v. Turbeville, 90 Ga. App. 367, 83 S.E.2d 72 (1954); Scheer v. Doss, 211 Ga. 7, 83 S.E.2d 612 (1954); Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154, 85 S.E.2d 169 (1954); Willingham v. Life & Cas. Ins. Co., 216 F.2d 226 (5th Cir. 1954); American Aviation & Gen. Ins. Co. v. Georgia Telco Credit Union, 223 F.2d 206 (5th Cir. 1955); Dwyer v. Providence Wash. Ins. Co., 95 Ga. App. 672, 98 S.E.2d 592 (1957); Nichols v. Williams Pontiac, Inc., 95 Ga. App. 752, 98 S.E.2d 659 (1957); Sundy v. Allgood, 96 Ga. App. 570, 101 S.E.2d 125 (1957); Carparking, Inc. v. Chappell's, Inc., 96 Ga. App. 862, 101 S.E.2d 894 (1958); Weldon v. Lashley, 214 Ga. 99, 103 S.E.2d 385 (1958); Alexander v. Skandalakis, 98 Ga. App. 755, 106 S.E.2d 842 (1958); Habif v. Maslia, 214 Ga. 654, 106 S.E.2d 905 (1959); Nikas v. Hindley, 99 Ga. App. 194, 108 S.E.2d 98 (1959); Georgia, S. & Fla. Ry. v. United States Cas. Co., 177 F. Supp. 751 (M.D. Ga. 1959); Wheeler v. Jones County, 101 Ga. App. 234, 113 S.E.2d 238 (1960); State Hwy. Dep't v. MacDougald Constr. Co., 102 Ga. App. 254, 115 S.E.2d 863 (1960); Collier v. Akins, 102 Ga. App. 274, 116 S.E.2d 121 (1960); Kunz v. Custer, 103 Ga. App. 593, 120 S.E.2d 186 (1961); United States ex rel. Dixie Plumbing Supply Co. v. Taylor, 293 F.2d 717 (5th Cir. 1961); Williams v. Hudgens, 217 Ga. 706, 124 S.E.2d 746 (1962); Shaw v. State Farm Mut. Ins. Co., 107 Ga. App. 8, 129 S.E.2d 85 (1962); Liberty Mut. Ins. Co. v. Mead Corp., 219 Ga. 6, 131 S.E.2d 534 (1963); McIntyre v. Zac-Lac Paint & Lacquer Corp., 107 Ga. App. 807, 131 S.E.2d 640 (1963); Kennesaw Life & Accident Ins. Co. v. Hendricks, 108 Ga. App. 148, 132 S.E.2d 152 (1963); Pethel v. Waters, 219 Ga. 376, 133 S.E.2d 334 (1963); Johnson v. Atlanta Auto Auction, Inc., 108 Ga. App. 735, 134 S.E.2d 538 (1963); S. & S. Bldrs., Inc. v. Equitable Inv. Corp., 219 Ga. 557, 134 S.E.2d 777 (1964); Peacock Constr. Co. v. West, 111 Ga. App. 604, 142 S.E.2d 332 (1965); Brown v. Chrysler Corp., 112 Ga. App. 22, 143 S.E.2d 575 (1965); Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646, 152 S.E.2d 579 (1966); Parkhill Trust Fund, Inc. v. Carroll, 115 Ga. App. 108, 153 S.E.2d 615 (1967); Cotton States Mut. Ins. Co. v. Hutto, 115 Ga. App. 164, 154 S.E.2d 375 (1967); Reynolds v. Long, 115 Ga. App. 182, 154 S.E.2d 299 (1967); Monroe v. Citizens & S. Nat'l Bank, 117 Ga. App. 288, 160 S.E.2d 203 (1968); Lake Spivey Parks v. Jones, 118 Ga. App. 60, 162 S.E.2d 801 (1968); B.L. Ivey Constr. Co. v. Pilot Fire & Cas. Co., 295 F. Supp. 840 (N.D. Ga. 1968); Ashburn Bank v. Childress, 120 Ga. App. 632, 171 S.E.2d 768 (1969); Travelers Indem. Co. v. Federal Ins. Co., 297 F. Supp. 1346 (N.D. Ga. 1969); Carter v. Rary, 311 F. Supp. 1386 (N.D. Ga. 1969); Padgett v. Bryant, 121 Ga. App. 807, 175 S.E.2d 884 (1970); Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883, 176 S.E.2d 103 (1970); Bostwick Banking Co. v. Arnold, 227 Ga. 18, 178 S.E.2d 890 (1970); Georgia Elec. Co. v. Malone, 123 Ga. App. 439, 181 S.E.2d 317 (1971); Trust Co. v. Guardian Life Ins. Co. of Am., 124 Ga. App. 465, 184 S.E.2d 363 (1971)
Ranger Ins. Co. v. Culberson, 454 F.2d 857 (5th Cir. 1971); Aetna Life Ins. Co. v. Sanders, 127 Ga. App. 352, 193 S.E.2d 173 (1972); Redman Dev. Corp. v. Piedmont Heating & Air Conditioning, Inc., 128 Ga. App. 447, 197 S.E.2d 167 (1973); Pinkerton & Laws Co. v. Atlantis Realty Co., 128 Ga. App. 662, 197 S.E.2d 749 (1973); Stone Mt. Scenic R.R., Inc. v. Stone Mt. Mem. Ass'n, 230 Ga. 800, 199 S.E.2d 216 (1973); Hamlin v. Timberlake Grocery Co., 130 Ga. App. 648, 204 S.E.2d 442 (1974); Pitman v. Griffeth, 131 Ga. App. 489, 206 S.E.2d 115 (1974); Aetna Fire Underwriters Ins. Co. v. Crawley, 132 Ga. App. 181, 207 S.E.2d 666 (1974); Bank Bldg. & Equip. Corp. v. Georgia State Bank, 132 Ga. App. 762, 209 S.E.2d 82 (1974); National Car Rental Sys. v. Council Whsle. Distribs., Inc., 393 F. Supp. 1128 (M.D. Ga. 1974); Haynie v. A & H Camper Sales, Inc., 233 Ga. 654, 212 S.E.2d 825 (1975); Hodges Appliance Co. v. United States Fid. & Guar. Co., 133 Ga. App. 936, 213 S.E.2d 46 (1975); Clark v. Peck, 134 Ga. App. 868, 216 S.E.2d 687 (1975); Ansley v. Forest Servs., Inc., 135 Ga. App. 745, 218 S.E.2d 914 (1975); City of Jonesboro v. Clayton County Water Auth., 136 Ga. App. 768, 222 S.E.2d 76 (1975); Barton v. Scott Hudgens Realty & Mtg., Inc., 136 Ga. App. 565, 222 S.E.2d 126 (1975); Showers v. Allstate Ins. Co., 136 Ga. App. 792, 222 S.E.2d 198 (1975); Peach State Uniform Serv., Inc. v. American Ins. Co., 507 F.2d 996 (5th Cir. 1975); Barksdale v. Peoples Fin. Corp., 393 F. Supp. 112 (N.D. Ga. 1975); Harrison v. Goodyear Serv. Stores, 137 Ga. App. 223, 223 S.E.2d 261 (1976); Price v. Guardian Mtg. Corp., 137 Ga. App. 519, 224 S.E.2d 451 (1976); Phillips v. Hertz Com. Leasing Corp., 138 Ga. App. 441, 226 S.E.2d 287 (1976); Interstate N. Assocs. v. Hensley-Schmidt, Inc., 138 Ga. App. 487, 226 S.E.2d 315 (1976); WTTI Broadcasters, Inc. v. Lloyd, 139 Ga. App. 115, 227 S.E.2d 905 (1976); Henderson Mill, Ltd. v. McConnell, 237 Ga. 807, 229 S.E.2d 660 (1976); Hardman v. Dahlonega-Lumpkin County Chamber of Commerce, 238 Ga. 551, 233 S.E.2d 753 (1977); Ford Motor Credit Co. v. Hunt, 141 Ga. App. 612, 234 S.E.2d 112 (1977); Hendon v. Ponderosa Ins. Adjusters, 141 Ga. App. 623, 234 S.E.2d 130 (1977); Brown v. Brigham, 143 Ga. App. 178, 237 S.E.2d 675 (1977); Dulock v. Shiver, 239 Ga. 604, 238 S.E.2d 397 (1977); In re Smith, 436 F. Supp. 469 (N.D. Ga. 1977); Jansen v. Emory Univ., 440 F. Supp. 1060 (N.D. Ga. 1977); Baker Mtg. Corp. v. Hugenberg, 145 Ga. App. 528, 244 S.E.2d 56 (1978); Lindwall v. Lindwall, 242 Ga. 13, 247 S.E.2d 752 (1978); Henderson Few & Co. v. Rollins Communications, Inc., 148 Ga. App. 139, 250 S.E.2d 830 (1978); Brigadier Indus. Corp. v. Pippin, 148 Ga. App. 145, 251 S.E.2d 114 (1978); Dolanson Co. v. Citizens & S. Nat'l Bank, 242 Ga. 681, 251 S.E.2d 274 (1978); General Fin. Corp. v. Sprouse, 577 F.2d 989 (5th Cir. 1978); Gobbi v. Hurt, 150 Ga. App. 60, 256 S.E.2d 664 (1979); Mossie v. Pilgrim Self-Service Storage, 150 Ga. App. 715, 258 S.E.2d 548 (1979); Clear-VU Cable, Inc. v. Town of Trion, 244 Ga. 790, 262 S.E.2d 73 (1979); Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 151 Ga. App. 898, 262 S.E.2d 151 (1979); Kennedy v. Brand Banking Co., 152 Ga. App. 47, 262 S.E.2d 177 (1979); Indian Trail Village, Inc. v. Smith, 152 Ga. App. 301, 262 S.E.2d 581 (1979); Johnson v. Bourchier, 245 Ga. 124, 263 S.E.2d 157 (1980); Wiggins v. Southern Bell Tel. & Tel. Co., 245 Ga. 526, 266 S.E.2d 148 (1980); Diggs v. Swift Loan & Fin. Co., 154 Ga. App. 389, 268 S.E.2d 433 (1980); Rollins v. Gault, 153 Ga. App. 781, 266 S.E.2d 560 (1980); American Century Mtg. Investors v. Bankamerica Realty Investors, 246 Ga. 39, 268 S.E.2d 609 (1980); Worlds v. Worlds, 154 Ga. App. 850, 270 S.E.2d 68 (1980); Chambley v. Georgia Steel, Inc., 617 F.2d 144 (5th Cir. 1980); Belk & Co. v. Millender Sales Corp., 158 Ga. App. 522, 281 S.E.2d 287 (1981); Summerville v. Belk-Rhodes Co., 160 Ga. App. 162, 286 S.E.2d 497 (1981); Myron v. Trust Co. Bank Long Term Disability Benefit Plan, 522 F. Supp. 511 (N.D. Ga. 1981); Morris v. Thrift Credit Union, 17 Bankr. 62 (Bankr. N.D. Ga. 1981); Lee v. White, 249 Ga. 99, 286 S.E.2d 723 (1982); Martin v. Southern Atlanta Inv. Corp., 160 Ga. App. 852, 287 S.E.2d 692 (1982); McMillan v. Jacobs, 249 Ga. 117, 288 S.E.2d 211 (1982); Travelers Indem. Co. v. Pullen & Co., 161 Ga. App. 784, 289 S.E.2d 792 (1982); Southern Fed. Sav. & Loan Ass'n v. Lyle, 249 Ga. 284, 290 S.E.2d 455 (1982); Perimeter Mall v. Retail Sense, Inc., 162 Ga. App. 465, 291 S.E.2d 392 (1982); Hortman v. Childress, 162 Ga. App. 536, 292 S.E.2d 200 (1982); Aetna Cas. & Sur. Co. v. W.G. Lothridge Contracting Co., 163 Ga. App. 731, 296 S.E.2d 83 (1982); Lakeshore Marine, Inc. v. Hartford Accident & Indem. Co., 164 Ga. App. 417, 296 S.E.2d 418 (1982); U.S. Enters., Inc. v. Mikado Custom Tailors, 250 Ga. 415, 297 S.E.2d 290 (1982); Brookhaven Landscape & Grading Co. v. J.F. Barton Contracting Co., 676 F.2d 516 (11th Cir. 1982); Management Assistance, Inc. v. Computer Dimensions, Inc., 546 F. Supp. 666 (N.D. Ga. 1982); Equitable Life Assurance Soc'y v. Sullivan, 165 Ga. App. 223, 299 S.E.2d 615 (1983); F & M Bank v. State, 167 Ga. App. 77, 306 S.E.2d 11 (1983); Anderson v. Southeastern Fid. Ins. Co., 251 Ga. 556, 307 S.E.2d 499 (1983); Hall v. Simkins Indus., Inc., 584 F. Supp. 955 (N.D. Ga. 1983); Baker v. Jellibeans, Inc., 252 Ga. 458, 314 S.E.2d 874 (1984); Dodson v. Ward, 171 Ga. App. 469, 320 S.E.2d 193 (1984); In re Wauka, Inc., 39 Bankr. 734 (Bankr. N.D. Ga. 1984); Norton v. Hutton, 172 Ga. App. 836, 324 S.E.2d 744 (1984); Reed v. Crown Ctr. Mgt. Co., 173 Ga. App. 520, 326 S.E.2d 825 (1985); Georgia Farm Bureau Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 173 Ga. App. 844, 328 S.E.2d 737 (1985); Smithloff v. Benson, 173 Ga. App. 870, 328 S.E.2d 759 (1985); Marjon Assocs. v. Leasing Int'l, Inc., 174 Ga. App. 679, 331 S.E.2d 20 (1985); Quigley v. Jones, 174 Ga. App. 787, 332 S.E.2d 7 (1985); National City Bank v. Busbin, 175 Ga. App. 103, 332 S.E.2d 678 (1985); Quigley v. Jones, 255 Ga. 33, 334 S.E.2d 664 (1985); Stern's Gallery of Gifts, Inc. v. Corporate Property Investors, Inc., 176 Ga. App. 586, 337 S.E.2d 29 (1985); Chandler v. Drexel Burnham Lambert, Inc., 633 F. Supp. 760 (N.D. Ga. 1985); Riddle v. Camp, 179 Ga. App. 129, 345 S.E.2d 667 (1986); Gans v. Georgia Fed. Sav. & Loan Ass'n, 179 Ga. App. 660, 347 S.E.2d 615 (1986); Gulf Life Ins. Co. v. Brown, 181 Ga. App. 72, 351 S.E.2d 267 (1986); United States Fire Ins. Co. v. Cowley & Assocs., 183 Ga. App. 478, 359 S.E.2d 160 (1987); Rigg v. New World Pictures, Inc., 183 Ga. App. 446, 359 S.E.2d 207 (1987); In re Royal, 75 Bankr. 50 (Bankr. S.D. Ga. 1987); Comprehensive Bookkeeping & Accounting, Inc. v. John B. Woodward, Inc., 185 Ga. App. 409, 364 S.E.2d 108 (1987); Original Appalachian Artworks, Inc. v. Schlaifer Nance & Co., 679 F. Supp. 1564 (N.D. Ga. 1987); Mag Mut. Ins. Co. v. Gatewood, 186 Ga. App. 169, 367 S.E.2d 63 (1988); Shore v. Loomis, 187 Ga. App. 674, 371 S.E.2d 96 (1988); McClintock v. Wellington Trade, Inc., 187 Ga. App. 898, 371 S.E.2d 893 (1988); Cincinnati Ins. Co. v. Page, 188 Ga. App. 876, 374 S.E.2d 768 (1988); Wages v. Mount Harmony Mem. Gardens, Inc., 189 Ga. App. 99, 375 S.E.2d 57 (1988); Chem Tech Finishers, Inc. v. Paul Mueller Co., 189 Ga. App. 433, 375 S.E.2d 881 (1988); Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 381 S.E.2d 322 (1989); Benoit v. Emory Univ., 191 Ga. App. 211, 381 S.E.2d 394 (1989); Holyoke Mut. Ins. Co. v. Cherokee Ins. Co., 192 Ga. App. 757, 386 S.E.2d 524 (1989); Davenport v. Nance, 194 Ga. App. 313, 390 S.E.2d 281 (1990); McGee v. Southern Gen. Ins. Co., 194 Ga. App. 783, 391 S.E.2d 669 (1990); Maddox v. Superior Rigging & Erecting Co., 195 Ga. App. 114, 393 S.E.2d 42 (1990); Shoffner v. Woodward, 195 Ga. App. 778, 394 S.E.2d 921 (1990); Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532, 397 S.E.2d 692 (1990); White v. Lawyers Title Ins. Corp., 197 Ga. App. 780, 399 S.E.2d 526 (1990)
Acord v. Maynard, 198 Ga. App. 296, 401 S.E.2d 315 (1991); Daniel v. Douglas County, 261 Ga. 103, 401 S.E.2d 508 (1991); Brunswick Floors, Inc. v. Carter, 199 Ga. App. 110, 403 S.E.2d 855 (1991); Smith v. Haywood Oil Co., 199 Ga. App. 562, 405 S.E.2d 560 (1991); Hirschfield v. Continental Cas. Co., 199 Ga. App. 654, 405 S.E.2d 737 (1991); Schoen v. Atlanta Cas. Co., 200 Ga. App. 109, 407 S.E.2d 91 (1991); Johnson v. Raatz, 200 Ga. App. 289, 407 S.E.2d 489 (1991); CM3, Inc. v. Associated Realty Investors/Prado, 201 Ga. App. 428, 411 S.E.2d 320 (1991); Country Pride Homes, Inc. v. DuBois, 201 Ga. App. 740, 412 S.E.2d 282 (1991); U3S Corp. of Am. v. Parker, 202 Ga. App. 374, 414 S.E.2d 513 (1991); Club Assocs. v. Consolidated Capital Realty Investors, 951 F.2d 1223 (11th Cir. 1992); Life Care Ambulance, Inc. v. Hospital Auth., 202 Ga. App. 864, 415 S.E.2d 502 (1992); Myers v. Texaco Ref. & Mktg., Inc., 205 Ga. App. 292, 422 S.E.2d 216 (1992); Loveless v. Sun Steel, Inc., 206 Ga. App. 247, 424 S.E.2d 887 (1992); Dixon v. Home Indem. Co., 206 Ga. App. 623, 426 S.E.2d 381 (1992); Donohue v. Green, 209 Ga. App. 381, 433 S.E.2d 431 (1993); Westminster Group, Inc. v. Perimeter 400 Partners, 218 Ga. App. 293, 460 S.E.2d 827 (1995); Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 470 S.E.2d 659 (1996); Duke v. KHD Deutz of Am. Corp., 221 Ga. App. 452, 471 S.E.2d 537 (1996); Choice Hotels Int'l, Inc. v. Ocmulgee Fields, Inc., 222 Ga. App. 185, 474 S.E.2d 56 (1996); Caribbean Lumber Co. v. Phoenix Assurance Co., 227 Ga. App. 236, 488 S.E.2d 718 (1997); Thomas v. Americal Global Ins. Co., 229 Ga. App. 107, 493 S.E.2d 12 (1997); Associated Mechanical Contractors, Inc. v. Martin K. Eby Constr. Co., 964 F. Supp. 1576 (M.D. Ga. 1997); CareAmerica, Inc. v. Southern Care Corp., 229 Ga. App. 878, 494 S.E.2d 720 (1997); Grier v. Brogdon, 234 Ga. App. 79, 505 S.E.2d 512 (1998); Department of Human Resources v. Citibank F.S.B., 243 Ga. App. 433, 534 S.E.2d 422 (2000); BellSouth Telecomms., Inc. v. MCImetro Access Transmission Servs., 97 F. Supp. 2d 1363 (N.D. Ga. 2000); Brown v. Blackmon, 272 Ga. 435, 530 S.E.2d 712 (2000); Malcom v. Newton County, 244 Ga. App. 464, 535 S.E.2d 824 (2000); Fontaine v. Sidelines IV, Inc., 245 Ga. App. 681, 538 S.E.2d 137 (2000); Connell v. Guarantee Trust Life Ins. Co., 246 Ga. App. 467, 541 S.E.2d 403 (2000); Booker v. Hall, 248 Ga. App. 639, 548 S.E.2d 391 (2001); Nobel Lodging, Inc. v. Holiday Hospitality Franchising, Inc., 249 Ga. App. 497, 548 S.E.2d 481 (2001); Balata Dev. Corp. v. Reed, 249 Ga. App. 528, 548 S.E.2d 668 (2001); George L. Smith II Ga. World Cong. Ctr. Auth. v. Soft Comdex, Inc., 250 Ga. App. 461, 550 S.E.2d 704 (2001); Pfeiffer v. DOT, 250 Ga. App. 643, 551 S.E.2d 58 (2001); Sharple v. Airtouch Cellular of Ga., Inc., 250 Ga. App. 216, 551 S.E.2d 87 (2001); Hibbard v. P.G.A., Inc., 251 Ga. App. 68, 553 S.E.2d 371 (2001); Hallum v. Provident Life & Accident Ins. Co., 257 F. Supp. 2d 1373 (N.D. Ga. 2001); Tachdjian v. Phillips, 256 Ga. App. 166, 568 S.E.2d 64 (2002); Emanuel Tractor Sales, Inc. v. DOT, 257 Ga. App. 360, 571 S.E.2d 150 (2002); Lodgenet Entm't Corp. v. Heritage Inn Assocs., 261 Ga. App. 557, 583 S.E.2d 225 (2003); Woody's Steaks, LLC v. Pastoria, 261 Ga. App. 815, 584 S.E.2d 41 (2003); Carolina Cas. Ins. Co. v. Ragan Mech. Contrs., Inc., 262 Ga. App. 6, 584 S.E.2d 646 (2003); Eckerd Corp. v. Alterman Props., 264 Ga. App. 72, 589 S.E.2d 660 (2003); Iraola & CIA., S.A. v. Kimberly-Clark Corp., 325 F.3d 1274 (11th Cir. 2003); Western Pac. Mut. Ins. Co. v. Davies, 267 Ga. App. 675, 601 S.E.2d 363 (2004); Eudy v. Universal Wrestling Corp., 272 Ga. App. 142, 611 S.E.2d 770 (2005); DOT v. Meadow Trace, Inc., 274 Ga. App. 267, 617 S.E.2d 246 (2005); Miami Heights LT, LLC v. Home Depot U.S.A., Inc., 283 Ga. App. 779, 643 S.E.2d 1 (2007); Interfinancial Midtown, Inc. v. Choate Constr. Co., 284 Ga. App. 747, 644 S.E.2d 281 (2007); UniFund Fin. Corp. v. Donaghue, 288 Ga. App. 81, 653 S.E.2d 513 (2007); Fireman's Fund Ins. Co. v. Univ. of Ga. Ath. Ass'n, 288 Ga. App. 355, 654 S.E.2d 207 (2007); Lambert v. Alfa Gen. Ins. Corp., 291 Ga. App. 57, 660 S.E.2d 889 (2008); Med S. Health Plans, LLC v. Life of the S. Ins. Co., F. Supp. 2d (M.D. Ga. May 19, 2008); Savannah Yacht Corp. v. Thunderbolt Marine, Inc., 297 Ga. App. 104, 676 S.E.2d 728 (2009); Am. Nat'l Prop. & Cas. Co. v. Amerieast, Inc., 297 Ga. App. 443, 677 S.E.2d 663 (2009); Azzouz v. Prime Pediatrics, P.C., 296 Ga. App. 602, 675 S.E.2d 314 (2009); Hathaway Dev. Co. v. Am. Empire Surplus Lines Ins. Co., 301 Ga. App. 65, 686 S.E.2d 855 (2009); Jimenez v. Gilbane Bldg. Co., 303 Ga. App. 125, 693 S.E.2d 126 (2010); S. Point Retail Ptnrs, LLC v. N. Am. Props. Atlanta, Ltd., 304 Ga. App. 419, 696 S.E.2d 136 (2010); Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790, 766 S.E.2d 156 (2014).
2. Intent of Parties
In construction of contract cardinal rule is to ascertain intention of parties, and to this end whole contract must be considered. Hull v. Lewis, 180 Ga. 721, 180 S.E. 599 (1935) See In re Estate of Sims, 259 Ga. App. 786, 578 S.E.2d 498 (2003).
Cardinal rule of construction is ascertainment and effectuation of intent. McVay v. Anderson, 221 Ga. 381, 144 S.E.2d 741 (1965).
Intention of parties as controlling factor.
- Cardinal rule of construction is to ascertain intention of parties to contract, and this is to be gathered from entire contract, considering each provision in connection with others, and not giving contract construction which entirely neutralizes one provision if the provision is susceptible of another which gives effect to all provisions. Holcim (US), Inc. v. AMDG, Inc., 265 Ga. App. 818, 596 S.E.2d 197 (2004).
It is a fundamental principle in construction of contracts that meaning placed upon terms of contract by contracting parties is to be adopted. This is particularly true of contract relating to particular trade or business. MacDougald Constr. Co. v. State Hwy. Dep't, 59 Ga. App. 708, 2 S.E.2d 197, rev'd on other grounds, 189 Ga. 490, 6 S.E.2d 570 (1939).
Fundamental rule is to give instrument that meaning which will best carry into effect intent of parties. Brooke v. Phillips Petro. Co., 113 Ga. App. 742, 149 S.E.2d 511 (1966).
Cardinal rule of contract construction is to ascertain the intent of the parties; where a sublease was ambiguous regarding a sublessee's obligation to pay operating expenses due under the master lease, fact questions remained as to the parties' intent, and a trial court erred in entering summary judgment for the sublessee but not in denying the sublessor's summary judgment motion. Drake v. Wayne, 52 Ga. App. 654, 184 S.E. 339 (1936).
Appellate court granted summary judgment to an estate in a wrongful death suit because after applying the rules of contract construction and considering parol evidence, the parties intended a worker to be a third party beneficiary of the promises made by the construction companies to obtain automobile liability insurance and to ensure the subcontractors did as well. Estate of Pitts v. City of Atlanta, 323 Ga. App. 70, 746 S.E.2d 698 (2013).
Intention of parties is determined from consideration of entire contract; and, if possible, all of its provisions should be so interpreted as to harmonize with each other. McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945); Morgan Guar. Trust Co. v. Atlanta Nat'l Real Estate Trust, 149 Ga. App. 118, 253 S.E.2d 774 (1979).
Umbrella insurance policy of a trailer involved in an accident contained an exclusion for the conduct of limited liability companies (LLCs) that provided that no person was an insured with respect to the conduct of an LLC that was not shown as a named insured; because the trailer was being pulled by an LLC, the LLC and driver were not covered. Gemini Ins. Co. v. Castro, F.3d (11th Cir. Jan. 24, 2018)(Unpublished).
To effectuate intent of parties, court to consider whole instrument and surrounding circumstances.
- In order to ascertain intention of parties, language of agreement should be considered in light of attendant and surrounding circumstances. Court should place itself as nearly as possible in situation of parties in seeking true meaning and correct application of language of contract. Aetna Life Ins. Co. v. Padgett, 49 Ga. App. 666, 176 S.E. 702 (1934).
To effectuate intent of parties, court is to take whole of instrument together, and to consider this with surrounding circumstances. Brooke v. Phillips Petro. Co., 113 Ga. App. 742, 149 S.E.2d 511 (1966).
Undertaking must be construed in light of substantial purpose which influenced parties to enter into contract in first place, and surrounding circumstances may be looked to in determining intention of parties to contract. Consolidated Freightways Corp. v. Williams, 139 Ga. App. 302, 228 S.E.2d 230 (1976).
When more than one reasonable construction may be placed upon the language of an agreement or when the language in the agreement is in conflict, ambiguity exists, requiring the trial court to construe the contract to determine the intent of the parties as a matter of law to resolve any ambiguity under O.C.G.A. § 13-2-2(1); the court seeks to determine the intent of the parties within the terms of the entire agreement. In re Estate of Sims, 259 Ga. App. 786, 578 S.E.2d 498 (2003).
Intent in breach of contract actions.
- In a breach of contract suit arising from a patent licensor's sale of its assets to the affiliate of a specified third party without giving prior notification to its licensee, the parties' notification agreement, construed in its entirety as required by O.C.G.A. § 13-2-2(4), was held to expressly permit the licensor to sell the assets to any affiliate of the specified third party. IP Co., LLC v. Cellnet Tech., Inc., F. Supp. 2d (N.D. Ga. July 17, 2008).
Intent of parties to settlement agreement.
- In reviewing the communications between the parties, and given that the courts had a duty to construe and enforce contracts as made and not to make contracts for the parties, because those communications led to a binding agreement between the parties, the trial court erred in concluding that the parties had not reached a settlement agreement. Mealer v. Kennedy, 290 Ga. App. 432, 659 S.E.2d 809 (2008).
Arbitration agreement intended to apply to current and former employees.
- Trial court did not err by ordering a pilot's employment related claims against the former employer to arbitration because the arbitration agreement clearly and unambiguously applied to disputes involving former employees and was not limited to only current employees. Wedemeyer v. Gulfstream Aero. Corp., 324 Ga. App. 47, 749 S.E.2d 241 (2013).
Trial court properly denied the former employee's motion for summary judgment on a claim for breach of an employment agreement and properly granted the former employer's motion for summary judgment on that claim because the former employee was not entitled to any future compensation from the former employer after the former employee's termination as the former employee and the former employer entered into an employment agreement with an initial six-month term which was terminable at will. Argo v. G-Tec Servs., 338 Ga. App. 608, 791 S.E.2d 193 (2016).
Employee not entitled to commission payments.
- Trial court properly denied the former employee's motion for summary judgment on a claim for breach of an employment agreement and properly granted the former employer's motion for summary judgment on that claim because the plain language of the agreement required the former employee to make sales in order to obtain a commission, and the former employee was not entitled to any commission as the former employee had not made any sales during the operative time period of the agreement. Argo v. G-Tec Servs., 338 Ga. App. 608, 791 S.E.2d 193 (2016).
Intent of parties in construing insurance policy.
- "Duplicate" insurance policy rendered the original contract of insurance void, and evidence showed that it was the intent of both parties to include the same table of guaranteed values found in the original policy within the terms of the "new" policy. Brannen v. Gulf Life Ins. Co., 201 Ga. App. 241, 410 S.E.2d 763 (1991).
Intent of parties in separation agreement.
- When an attorney sued a former client's ex-spouse to enforce a lien on the former client's former marital residence, which was titled in the ex-spouse's name, the ex-spouse's separation agreement with the former client unambiguously provided for the payment of liens against the parties to the agreement, and this included the attorney's lien. Northen v. Tobin, 262 Ga. App. 339, 585 S.E.2d 681 (2003).
Home purchase and sale agreement.
- Trial court did not abuse the court's discretion in resolving an ambiguity in a home purchase and sale agreement to find that the home buyers, pursuant to the intent of the parties to the agreement, unilaterally extended the closing date so that the agreement did not expire before the extended closing. Yargus v. Smith, 254 Ga. App. 338, 562 S.E.2d 371 (2002).
Divorce settlement.
- Trial court properly found that the term "gross income" in the parties' divorce settlement agreement was ambiguous, and, in construing the agreement against the father as the obligor, that the parties intended for child support to be based on Georgia's Child Support Guidelines, and that, by assigning earned income to the father's professional corporation, thereby substantially understating the father's gross income, the father wilfully violated the conditions of the settlement agreement; the father's "gross income" significantly exceeded Form W-2 wages, and the father's computation of child support based only on the father's Form W-2 salary created a child support deficiency. Pate v. Pate, 280 Ga. 796, 631 S.E.2d 103 (2006).
Restrictive covenant that authorized transfer of property did not allow a brother to transfer subdivision property to another brother, who owned a lot adjoining the subdivision property; the covenant expressly applied to the subdivision and it was the intent of the parties that the restrictive covenant apply only to the subdivision. Danos v. Thompson, 272 Ga. App. 69, 611 S.E.2d 678 (2005).
Debtor's objection to creditor's claims.
- Two Chapter 13 debtors' objection to a creditor's claim, which lumped both a secured amount and an unsecured amount into one claim, was well-taken; when the canons of construction that applied to such contracts, including that concerning ambiguity in O.C.G.A. § 13-2-3 and that concerning the parties' intent in O.C.G.A. § 13-2-2 were applied to the two agreements under which the creditor had financed the debtors' purchase of a house trailer and then extended additional credit to the debtors to allow them to move the trailer to a new location, it was clear that only the original transaction was intended to result in a secured obligation. In re Toland, Bankr. (Bankr. M.D. Ga. Aug. 8, 2005).
Intent of parties in lease.
- Trial court was authorized to construe commercial lease and shareholder buyout agreements between a lessor and a lessee together as multiple documents executed during the course of a single transaction; in so doing, the court's finding that the agreement was linked to the lease's 10-year term upheld the contract as a whole, reflected the parties' intent as expressed in the testimony and documentary evidence offered at trial, and was supported by all the attendant and surrounding circumstances. Allen v. Harkness Stone Co., 271 Ga. App. 397, 609 S.E.2d 647 (2004).
After applying the rules of contract construction under O.C.G.A. §§ 13-2-2 and13-2-3, the Court of Appeals of Georgia upheld an order granting summary judgment to a lessee, as it was not required to pay the lessee's portion of security related costs under the terms of the lease, according to the Common Area Costs formula contained therein; hence, the lessee was authorized to refuse to pay those costs without being in breach of the lease agreement. Covington Square Assocs., LLC v. Ingles Mkts., Inc., 283 Ga. App. 307, 641 S.E.2d 266 (2007).
Lease agreement could be supplemented with implied terms.- Where a provision in a golf course lease between a Chapter 11 debtor and a city provided that "authorized representatives" of the city and the debtor could use rounds at the golf course at no charge to entertain sponsors and clients and for other business purposes, the lease was not unenforceable due to vagueness because it was possible for the court to determine the reasonable intention of the parties by asking them to submit practical suggestions for workable procedures to implement the provision. In re Cherokee Run Country Club, Inc. v. City of Conyers (In re Cherokee Run Country Club, Inc.), 430 Bankr. 281 (Bankr. N.D. Ga. 2009).
Trial court held not to err in receiving affidavits which sought to illuminate the intention of the parties at the time of the agreement. Tidwell v. Carroll Bldrs., Inc., 251 Ga. 415, 306 S.E.2d 279 (1983).
When language susceptible of more than one understanding, intent of parties to be ascertained.
- When language of written instrument may be fairly understood in more ways than one, it should be taken in sense put upon the instrument by the parties at time of the instrument's execution, and court will hear evidence as to facts and surroundings. National Manufacture & Stores Corp. v. Dekle, 48 Ga. App. 515, 173 S.E. 408 (1934).
Restrictive covenants upheld because otherwise purchase agreement would be rendered meaningless.
- As parties to an asset purchase agreement intended that the buyer acquire the seller's restrictive covenants, and that the seller release its rights in covenants as to its employees who became the seller's employees, a former employee of the seller who became the buyer's employee was bound by covenants. The employee's argument that the buyer purchased, but simultaneously extinguished, the restrictive covenants was rejected because, by purchasing restrictive covenants that it could not enforce, the buyer would have purchased no covenants at all, which would have rendered provisions of the purchase agreement meaningless. Stevens v. YCA, LLC, 268 Ga. App. 413, 602 S.E.2d 214 (2004).
Application of indemnity provision.
- Trial court properly granted summary judgment to a limited liability company (LLC) and its owners on a corporation's indemnity and guaranty claims as the indemnity provisions in the parties' contract applied only to the corporation's guaranties, while the loan and capital conversion provisions applied to all members of a joint venture; further, as the owners personally guaranteed the LLC's debt to the corporation, the members were only liable if the LLC was liable. Alimenta (USA), Inc. v. Oil Seed South, LLC, 276 Ga. App. 62, 622 S.E.2d 363 (2005).
Parent signed as agent for adult son, not in personal capacity.
- Trial court erred in granting summary judgment to a medical center and denying it to a patient's parent because the parent signed the form on behalf of the adult son as an agent, not in a personal capacity; thus, the parent was not personally liable for any unpaid medical bills. Winterboer v. Floyd Healthcare Mgmt., 334 Ga. App. 97, 778 S.E.2d 354 (2015).
Disability insurance policy.
- An insurer's interpretation that an employee was not totally disabled for purposes of a disability policy if the employee had only an inability to perform some material duties was correct; under O.C.G.A. §§ 13-2-3 and13-2-2(4), in determining the parties' intent from the whole contract, the use of "total" and "totally" showed the intent to define a state of whole, rather than partial, disability. However, a worker's condition did not merely preclude the worker from doing as much in a day; there were duties of the occupation that the worker could not perform, and, although the worker could perform some light duties after the injury, whether the worker was wholly disabled from performing the "material" duties of the occupation within 180 days of the injury was a jury question such that summary judgment was error. Fountain v. Unum Life Ins. Co. of Am., 297 Ga. App. 458, 677 S.E.2d 334 (2009).
Construction of surety contract.
- Surety prevailed regarding a five year warranty on the roofs of certain newly constructed buildings because the plain language of the bond stated that the bond covered the roofs only for the five years after an architect issued a final certificate, and the architect had refused to issue a final certificate since the work had not been completed. Ga. State Fin. v. XL Speciality Ins. Co., 303 Ga. App. 540, 694 S.E.2d 193 (2010).
Knowledge of capacity in which signing promissory note.
- In an action following the default of a promissory note, the trial court properly granted the defendant summary judgment because the defendant had signed the promissory note solely in a representative capacity of a limited liability company and was not personally liable and the plaintiff knew that the defendant had not signed in a personal capacity. Envision Printing, LLC v. Evans, 336 Ga. App. 635, 786 S.E.2d 250 (2016).
Parties intended to honor arbitration clause in debt agreement.
- Trial court erred by denying a client's motion to compel arbitration of the claim against a debt settlement corporation for violations of the debt adjusting statutes, O.C.G.A. § 18-5-1 et seq., because the arbitration provision in the debt settlement agreement mandated arbitration of all disputes and claims between the parties related to the agreement and the claim that the corporation violated statutes regulating the business of debt adjusting was connected to the debt settlement agreement. Penso Holdings, Inc. v. Cleveland, 324 Ga. App. 259, 749 S.E.2d 821 (2013).
Contingency fee contract.
- Ambiguity in a contingency fee contract, regarding whether the client had to pay for paralegal services upon terminating the law firm's services, could not be resolved by applying the rules of contract construction, and the jury had to resolve the issue of what the ambiguous language meant and what the parties intended. Shepherd v. Greer, Klosic & Daugherty, 325 Ga. App. 188, 750 S.E.2d 463 (2013).
3. Intent Based on Conduct
Conduct as evidence of intent.
- Although the parties in drafting Amendment 3 apparently did not contemplate that rezoning might be denied, it was apparent from the conduct of both parties that the parties intended that the amendment provide for an inspection period of 45 days after the county's action on the zoning request. Ashkouti v. Widener, 231 Ga. App. 539, 500 S.E.2d 337 (1998).
Testing service, which required test takers to present valid identification at the time of a test, did not waive the identification requirement by allowing an examinee to take a test without presenting valid identification, as there was no evidence that the service dispensed with the examinee's duty to present acceptable identification for the subsequent tests. Sims v. Taylor, F.3d (11th Cir. Mar. 26, 2008)(Unpublished).
Omitted form paragraphs are parts of written document and serve to explain intent of parties, just as typewritten or handwritten statements serve to clarify or to change sense of printed paragraphs. Ranger Ins. Co. v. Culberson, 454 F.2d 857 (5th Cir. 1971), cert. denied, 407 U.S. 916, 92 S. Ct. 2440, 32 L. Ed. 2d 691 (1972).
It cannot be presumed that either party to timber lease intended waste, and therefore it must have been intended by both that lease would include, with respect to size, only such timber as an ordinarily prudent owner would use or lease. Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783 (1947).
Substitution by court of word "or" for "and also" to carry out intent of parties.
- In marriage settlement where contract did not express intention of parties, court substituted the word "or" for words "and also" to carry intention of parties into effect. Ardis v. Printup, 39 Ga. 648 (1869).
Agreement that house buyer would pay real estate commission presumed.
- Although the intentions of the parties was not expressed, an agreement between a buyer of a house and a broker that the buyer would pay the real estate sales commission was implied or presumed from their actions. Dorsey v. Harrison, 171 Ga. App. 774, 320 S.E.2d 881 (1984).
Intent ambiguous where provision went unpriced, unsigned.
- In a claim for damages resulting from delays in the performance of a construction contract, the omitted price term and unexecuted condition of a no-damages-for-delay clause of a contract form prepared by defendant's engineers rendered the parties' intent to be bound by that clause ambiguous, creating a question of fact for resolution at trial. Atlanta Economic Dev. Corp. v. Ruby-Collins, Inc., 206 Ga. App. 434, 425 S.E.2d 673 (1992).
Circumstances leading to divorce settlement.
- Trial court correctly found that as part of an agreement to finally settle all issues between the parties, a wife agreed to waive any interest she may have had in the husband's civil service retirement; the conduct and statements of the parties and their counsel all supported the finding that a reasonable person in the husband's position would believe the wife assented to waive any claims to the retirement. Hart v. Hart, 297 Ga. 709, 777 S.E.2d 431 (2015).
4. Jury-Court Determinations
If after application of rules of construction, ambiguity remains, issue is for jury.
- Construction of ambiguous written contracts is matter for court, and no jury question is raised unless after application of all applicable rules of construction ambiguity remains. Western Contracting Corp. v. State Hwy. Dep't, 125 Ga. App. 376, 187 S.E.2d 690 (1972).
Construction of ambiguous contracts is duty of court, and no jury question is raised unless after application of pertinent rules of construction ambiguity remains. Erquitt v. Solomon, 135 Ga. App. 502, 218 S.E.2d 172 (1975); Archer v. Carson, 213 Ga. App. 161, 444 S.E.2d 82 (1993).
When, after reviewing the record, the Court of Appeals agrees that the trial court first properly decided that the language of an insurance policy was ambiguous, and applying the applicable rules of construction, including paragraphs (2), (4), and (5) of O.C.G.A. § 13-2-2, the Court of Appeals concludes that the contract terms in question were still ambiguous, the Court of Appeals will hold that the trial court properly turned the question of contract construction over to the jury. Travelers Ins. Co. v. Blakey, 180 Ga. App. 520, 349 S.E.2d 474 (1986).
In a dispute between investors and developers of medical records software, the parties' agreement was ambiguous in that one part stated the developers were only entitled to recover development costs solely from the sale of the software, yet another part entitled them to be paid first from "all income" of the joint venture; the question of the parties' intent was for the jury, and summary judgment was reversed. Healthy-IT, LLC v. Agrawal, 343 Ga. App. 660, 808 S.E.2d 876 (2017).
Court's role in interpreting insurance policy exclusion.
- Where an injured patron was struck in the nose by a beer bottle thrown in the insured's bar, the injured patron contended that the insured was liable because the bar and the bar's employees failed to prevent the bottle thrower's attack and the injured patron claimed to have suffered serious injury and disfigurement, but the insurer claimed that the insurer had no duty to defend or indemnify the insured because the incident fell within the policy's assault and battery exclusion; the court held that the portion of the policy addressing assault and battery was not intended to exclude coverage for a bodily injury claim arising out of an assault and battery committed by a patron, as any other interpretation would have rendered certain language in the policy meaningless. ALEA London Ltd. v. Woodcock, 286 Ga. App. 572, 649 S.E.2d 740 (2007), cert. denied, 2007 Ga. LEXIS 703 (Ga. 2007).
In an action brought by a lessor against a former lessee, a dry cleaning corporation, for indemnification for remediation expenses incurred in cleaning up the contaminated shopping center property vacated by the lessee, the trial court properly refused to examine a pollution liability exclusion endorsement in a vacuum and, rather, considered that language in concert with other policy language addressing coverage of property damage arising out of the discharge of pollutants and thereby found that an umbrella policy provided coverage for quick, abrupt, and accidental discharges of pollutants. The trial court properly determined that the inconsistent language of the pollution liability exclusion and an amendatory endorsement were ambiguous as the amendatory endorsement narrowed the scope of the pollution liability exclusion by exempting from it discharges that were quick, abrupt, and accidental; but the pollution liability exclusion endorsement broadened the scope of the exclusion by extending the exclusion to any discharge. State Farm Fire & Cas. Co. v. Walnut Ave. Partners, LLC, 296 Ga. App. 648, 675 S.E.2d 534 (2009).
Existence or nonexistence of ambiguity in contract is question of law for court; and if there are ambiguities, reference may be had to other related instruments to explain such ambiguity. Cassville-White Assocs. v. Bartow Assocs., 150 Ga. App. 561, 258 S.E.2d 175 (1979).
If court determines ambiguity exists, court must attempt to resolve ambiguity by applying the rules of construction set forth in O.C.G.A. § 13-2-2. Smith v. Freeport Kaolin Co., 687 F. Supp. 1550 (M.D. Ga. 1988).
Because the trial court was faced with an ambiguity in a covenants declaration regarding the construction of improvements on commercial property, the court erred in granting summary judgment to the property's owner and the lessee, and finding that the ambiguity had to be construed against the developer, instead of first attempting to resolve the ambiguity by applying the rules of contract construction provided in O.C.G.A. § 13-2-2(4). White v. Kaminsky, 271 Ga. App. 719, 610 S.E.2d 542 (2004).
When contracts are unambiguous it is error to submit construction to jury. State Hwy. Dep't v. MacDougald Constr. Co., 102 Ga. App. 254, 115 S.E.2d 863 (1960).
Intent of parties to ambiguous contract for jury determination.
- If there is any ambiguity or uncertainty in written contract, it is for the jury to determine, from consideration of all of evidence, just what purpose, intention, and design of parties were. Taylor v. Estes, 85 Ga. App. 716, 70 S.E.2d 82 (1952).
Trial court erred by granting the sellers summary judgment in a breach of promissory notes action because ambiguities existed in the purchase agreement and handwritten notes to supply the buyers with information about the financial performance of the dance competition in 2009 could support a claim for fraudulent inducement. Roca Properties, LLC v. Dance Hotlanta, Inc., 327 Ga. App. 700, 761 S.E.2d 105 (2014).
Disagreement as to intent of parties is evidentiary, factual matter for resolution by jury and not a matter of law for determination by court. Crestlawn Mem. Park v. Scott, 146 Ga. App. 715, 247 S.E.2d 175 (1978); St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815 (11th Cir. 1999); Maiz v. Virani, 253 F.3d 641 (11th Cir. 2001).
Jury to determine meanings of obscure words.
- Whenever there is any matter of fact involved as to meaning of obscure word in contract, jury should make finding of fact thereon. Kilgore v. Nasworthy, 124 Ga. App. 261, 183 S.E.2d 481 (1971).
Jury's interpretation of enrollment emergency upheld.
- Trial court did not err by denying a university's motion for judgment notwithstanding the verdict because the evidence presented at trial showed, without dispute, that the university relied upon only the enrollment emergency provision in the faculty handbook to justify its decision to lay-off 54 faculty members and the jury could have concluded that the university breached its contract with the professors by declaring an enrollment emergency. Wilson v. Clark Atlanta University, Inc., 339 Ga. App. 814, 794 S.E.2d 422 (2016).
Construction of consent judgment.
- Trial court erred in determining that a corporation was not a party to a consent judgment because the consent judgment was ambiguous, and the provision stating that judgment was not entered against the corporation "at this time" since the corporation was in bankruptcy implied that the entry of judgment was contemplated at a later time; the surrounding circumstances showed that the corporation filed a dismissal of the corporation's counterclaim with prejudice contemporaneously with the filing of the consent judgment, thereby manifesting an understanding that the corporation was included in, and obligated by, the consent judgment, and the corporation was listed as a defendant in the style of the case on the face of the consent judgment. Duke Galish, LLC v. Manton, 308 Ga. App. 316, 707 S.E.2d 555 (2011).
Summary judgment vacated due to existence of genuine issues of fact on construction of contract.
- Trial court erred by granting summary judgment to a bank because genuine issues of fact existed as to the bank's obligations under the loan contract such as whether the bank was not to record the security interests assigned to it except in the event of a default by the borrower, whether the bank breached a duty to cooperate with the borrower in foreclosing on the properties securing the underlying loans, and whether a duty on the bank to endeavor to timely review loan requests was meaningless. DJ Mortg., LLC v. Synovus Bank, 325 Ga. App. 382, 750 S.E.2d 797 (2013).
Parol Evidence
1. In General
Presumption that writing contains entire contract.
- When parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument. Andrews v. Skinner, 158 Ga. App. 229, 279 S.E.2d 523 (1981).
Parol evidence inadmissible as against written contract.
- Parol evidence is inadmissible to add to, take from, or vary a written contract. Nash v. Twp. Invs., LLC, 320 Ga. App. 494, 740 S.E.2d 236 (2013).
In an action for timber conversion, the trial court erred when the court denied the plaintiff's motion in limine to exclude parol evidence concerning the plaintiff's alleged consent to the timber company's cutting and other topics because O.C.G.A. § 51-12-51(a) clearly and unambiguously required written consent and any verbal consent to cut timber on the property was inadequate; parol evidence regarding an understanding to cut timber at or even after the closing was inadmissible as it could be taken to contradict the plain terms of the loan documents, which barred cutting without written consent; and the jury apparently considered the parol evidence in the course of reaching the jury's verdict for the timber company. AgSouth Farm Credit, ACA v. Gowen Timber Co., 336 Ga. App. 581, 784 S.E.2d 913 (2016).
Parol evidence rule is rule of positive or substantive law.
- Rule which denies effect to an oral agreement which contradicts a written contract entered into at the same time or later is not one merely of evidence, but is one of positive or substantive law founded upon substantive rights of parties. Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944).
The parol evidence rule is not a rule of evidence, but, rather, a rule of substantive law. Dixon v. S & S Loan Serv. of Waycross, Inc., 754 F. Supp. 1567 (S.D. Ga. 1990).
Purpose of parol evidence rule is to establish finality of written contracts.
- Purpose of rule that terms of valid written agreement which is complete and terms of which are not ambiguous cannot be contradicted, added to, altered, or varied by parol agreements, is to establish finality of written contracts. Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936).
Rule also precludes use of written evidence.- Despite its name, the parol evidence rule also precludes the use of written evidence to add to, take from, or vary the terms of a written agreement. Dixon v. S & S Loan Serv. of Waycross, Inc., 754 F. Supp. 1567 (S.D. Ga. 1990).
Parol evidence rule fixes finality of written contract which is unmixed with fraud respecting subject matter; it is a rule of substantive law, and though parol evidence be erroneously admitted without objection, it is without probative value to vary terms of written contract. Cooper v. Vaughan, 81 Ga. App. 330, 58 S.E.2d 453 (1950).
Where no definiteness within contract, neither parol nor other extraneous evidence alone may supply deficiency. Burden v. Thomas, 104 Ga. App. 300, 121 S.E.2d 684 (1961).
Contracts may be modified by subsequent parol agreements. Fisher v. J.A. Jones Constr. Co., 87 Ga. App. 317, 73 S.E.2d 587 (1952).
Prerequisites to parol proof to complete agreement.
- To bring case within rule admitting parol evidence to complete entire agreement of which writing is only part, two things are essential: first, writing must appear on inspection to be an incomplete contract; and, second, parol evidence must be consistent with, and not contradictory of, written instrument. Bowen v. Swift & Co., 52 Ga. App. 793, 184 S.E. 625 (1936).
Oral agreements contemporaneous with written contracts are unenforceable where in conflict with written instrument. Fisher v. J.A. Jones Constr. Co., 87 Ga. App. 317, 73 S.E.2d 587 (1952).
Parol negotiations eventuating in unambiguous written contract merge into writing, and cannot vary or contradict writing. Wynn v. First Nat'l Bank, 176 Ga. 218, 167 S.E. 513 (1933); Early v. Kent, 215 Ga. 49, 108 S.E.2d 708 (1959).
Merger of oral agreement with written agreement.
- Once parties have reduced their contract to writing, all prior oral negotiations and agreements pertaining to same subject matter are merged into and superseded by writing. Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944).
Contract of sale merges prior negotiations and all oral understandings and court cannot rewrite agreement to suit one party. R.C. Craig, Ltd. v. Ships of Sea, Inc., 401 F. Supp. 1051 (S.D. Ga. 1975).
Parol evidence inadmissible if language of agreement is clear.
- Because a lienholder signed a subordination agreement that expressly stated that it subordinated a certain security deed held by the lienholder to the interests of another, it was clear from the agreement's language that it also subordinated another security deed held by the lienholder regarding the same property, so, under O.C.G.A. § 13-2-2(1), parol evidence was inadmissible to vary this language. VATACS Group, Inc. v. HomeSide Lending, Inc., 276 Ga. App. 386, 623 S.E.2d 534 (2005).
Oral promise merged into writing cannot serve as basis for action in fraud or contract.
- Alleged oral promise, made contemporaneously with written contract, is thus merged into that contract and cannot serve as basis for action in fraud or in contract. Thomas v. Henkin, 146 Ga. App. 508, 246 S.E.2d 501 (1978).
Contradictory parol evidence.
- When the contract is complete on its face and the evidence offered to explain the ambiguity contradicts the terms of the written instrument, parol evidence should not be admitted. American Cyanamid Co. v. Ring, 248 Ga. 673, 286 S.E.2d 1 (1982).
Grafting additional obligation onto written contract by parol testimony.
- All previous negotiations are merged in the subsequent written contract, and an additional obligation cannot be grafted thereon by parol testimony. Garcia v. Unique Realty & Property Mgt. Co., 205 Ga. App. 876, 424 S.E.2d 14 (1992).
2. Distinct Collateral Oral Agreements
Distinct collateral oral agreement, not inconsistent with written one, not merged into latter.
- All prior or contemporaneous parol agreements between same parties are not necessarily merged into written contract; distinct collateral oral agreement, not inconsistent with the written agreement, is not so merged. Cooper v. Vaughan, 81 Ga. App. 330, 58 S.E.2d 453 (1950).
Generally, all prior and contemporaneous oral agreements between contracting parties are merged into the written contract which purports to be the entire agreement of the parties, although a distinct, collateral oral agreement which is not inconsistent with the written contract may still be proven. Adams v. North Am. Bus. Brokers, Inc., 168 Ga. App. 341, 309 S.E.2d 164 (1983).
Oral agreement that contradicts written agreement inadmissible.
- Evidence that attorney verbally agreed to keep fees at the low end of the range specified in the attorney's written agreement with plaintiff and to complete the project within two weeks was inadmissible, since the evidence contradicted the parties' written agreement. Schluter v. Perrie, Buker, Stagg & Jones, 230 Ga. App. 776, 498 S.E.2d 543 (1998).
Independent, complete verbal agreement, not part of written one, not subject to parol evidence rule.
- When alleged verbal agreement is independent and complete contract within itself and forms no part of written contract, the verbal agreement does not come within operation of parol evidence rule. Taylor Freezer Sales Co. v. Hydrick, 138 Ga. App. 738, 227 S.E.2d 494 (1976).
Parol testimony may be admitted to explain ambiguous language, or to show distinct collateral understanding, although it may not contradict or vary writing itself. Tanner v. Tinsley, 152 Ga. App. 330, 262 S.E.2d 602 (1979).
Oral agreement separate and distinct from and not inconsistent with written contract is admissible.
- Test to determine whether oral agreement is admissible is whether the oral agreement constitutes part of a written contract or whether, instead, it is a separate and distinct, oral contract which is not inconsistent with the written contract. If the latter, the agreement is admissible. S. & S. Bldrs., Inc. v. Equitable Inv. Corp., 219 Ga. 557, 134 S.E.2d 777 (1964).
Independent parol agreement dealing with subject not covered by writing, admissible if consistent with writing.
- Rule of evidence which favors written contracts excludes parol stipulations relating to subject matter of contract, which add to, vary, or qualify terms as written; but contract which is consistent with these terms, and of independent nature, when writing does not expressly or by implication undertake to deal with any of its terms, may be set up and proved by parol evidence. Long v. Cash, 54 Ga. App. 764, 189 S.E. 73 (1936).
Admissibility of independent oral agreement which induced purchasers to enter contract of sale.
- It is a well-settled rule that one contract may be consideration of another, inducement to execution thereof; and where independent parol agreement has been made as inducement to making of written contract, former may be proved and enforced, though not referred to in latter. Cooper v. Vaughan, 81 Ga. App. 330, 58 S.E.2d 453 (1950).
Distinct collateral oral agreement, not inconsistent with written contract, is not necessarily merged therein, and one contract may be consideration of another, the inducement to its execution, and independent oral agreement which has been so induced may be proved and enforced though not referred to in written contract. Fisher v. J.A. Jones Constr. Co., 87 Ga. App. 317, 73 S.E.2d 587 (1952).
Equity will take cognizance of action on independent oral agreement, consideration of which is that it induced purchasers to enter into contract of sale. Garrett v. Diamond, 144 Ga. App. 428, 240 S.E.2d 912 (1977).
Parol evidence of release from guaranties inadmissible.
- Guarantors' claims that the guarantors entered into written agreements with a bank releasing the guarantors from their guaranty agreements was not supported by any evidence; there was nothing to satisfactorily account for the absence of the written agreements, former O.C.G.A. § 24-5-4(a) (see now O.C.G.A. § 24-10-1002), and any oral assurances by bank personnel were inadmissible to vary from the terms of the guaranty agreements under O.C.G.A. § 13-2-2(1). Windham & Windham, Inc. v. Suntrust Bank, 313 Ga. App. 841, 723 S.E.2d 70 (2012).
3. Complete Agreements
When the parties agree that a written contract contains the entire agreement, any understanding not embodied in the writing is irrelevant. Kelson Cos. v. Feingold, 168 Ga. App. 391, 309 S.E.2d 394 (1983).
Parol evidence inadmissible to vary plain, unambiguous terms of written contract.
- Parol evidence, purpose of which was to change or vary plain and unambiguous terms of written contract, is inadmissible. Early v. Kent, 215 Ga. 49, 108 S.E.2d 708 (1959).
When terms of contract are clear, parol evidence will not be allowed to raise ambiguity for purpose of proving that contract was different from that expressed in writing. Universal Profile, Inc. v. Atlanta Fed. Sav. & Loan Ass'n, 6 Bankr. 196 (Bankr. N.D. Ga. 1980).
As a separation agreement clearly and unambiguously required a decedent to maintain life insurance naming the decedent's former spouse as beneficiary, parol evidence was inadmissible to vary the agreement. In re Estate of Belcher, 299 Ga. App. 432, 682 S.E.2d 581 (2009).
Parol evidence inadmissible as to unambiguous, complete contracts.- Parol evidence is not permitted when there is no latent or patent ambiguity, and written agreement was intended to and did speak entire contract. Victory Motors of Savannah, Inc. v. Chrysler Motors Corp., 357 F.2d 429 (5th Cir. 1966).
Absent fraud, accident, or mistake, parol evidence is not admissible to vary, add to, modify, or contradict an unambiguous written contract. Neal v. Conwell, 127 Ga. 238, 55 S.E. 936 (1906); Bush v. Roberts, 4 Ga. App. 531, 62 S.E. 92 (1908); Gaulding v. Baker, 9 Ga. App. 578, 71 S.E. 1018 (1911); Coleman v. Barber, 137 Ga. 22, 72 S.E. 399 (1911); Jones v. Jones, 141 Ga. 727, 82 S.E. 451 (1914); Citizens Bank v. Southern Sec. & Fin. Co., 143 Ga. 101, 84 S.E. 465 (1915); McConnell v. Hulsey, 17 Ga. App. 387, 87 S.E. 156 (1915).
When contract is entire, part of which is written and part parol, written part cannot be varied by parol evidence in absence of fraud, accident, or mistake. Johnson v. Nisbet, 137 Ga. 150, 72 S.E. 915 (1911).
If a written contract for sale of personalty appears on the contract's face to contain the entire agreement, and there are no circumstances surrounding the contract's execution which would authorize an inference to the contrary, the contract cannot, in absence of fraud, accident, or mistake, be amplified or added to by a contemporaneous parol agreement between parties. Palmer v. Knoxville Lumber & Mfg. Co., 27 Ga. App. 386, 108 S.E. 557 (1921).
Absent fraud, accident, or mistake, parol evidence inadmissible to affect complete and unambiguous written contract. American Sumatra Tobacco Corp. v. Willis, 170 F.2d 215 (5th Cir. 1948).
Valid written contract, which is complete, and terms of which are not ambiguous, cannot be contradicted, added to, altered, or varied by parol agreements. Smith v. Standard Oil Co., 227 Ga. 268, 180 S.E.2d 691 (1971).
Terms of complete and unambiguous written contract cannot be varied by parol agreement in absence of allegation of fraud, accident, or mistake. Vulcan Materials Co. v. Douglas, 131 Ga. App. 21, 205 S.E.2d 84 (1974).
In absence of fraud, accident, or mistake, parol evidence of prior or contemporaneous conversations, representations, or statements is inadmissible to add to or vary written instrument. C.P.D. Chem. Co. v. National Car Rental Sys., 148 Ga. App. 756, 252 S.E.2d 665 (1979).
When contract complete, parol evidence generally admissible only as to ambiguities.
- When contract for cutting of timber appears upon the contract's face to be complete, that is, to embody an entire agreement, and there is no question as to fraud, accident, or mistake, question as to quantity must be determined by court as matter of interpretation, unless there is ambiguity, latent or patent, such as would render parol evidence admissible in relation to that question. McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945).
When contract appears complete, absent allegation to contrary, parol evidence inadmissible to vary terms.
- While it is true that in order to arrive at true interpretation of contracts all attendant and surrounding circumstances may be proved, in absence of allegation that something was omitted from contract or that writing did not constitute entire contract, and such fact is not apparent upon face of writing, allegation that contemporaneously with or subsequently to execution of contract, parties agreed to variation of the contract would be objectionable, as it would be in contravention of rule denying parol proof variant from written terms of contract. All previous negotiations merged in written contract and additional obligation cannot be grafted thereon. Wilson v. Martin, 73 Ga. App. 82, 35 S.E.2d 532 (1945).
When writing appears to be complete and certain agreement and there is no evidence or allegation of fraud or accident, then the contract will be presumed to contain the entire contract, and parol evidence of prior or contemporaneous representations or statements will not be considered to add to, take from, or vary the written instruments involved. R.S. Helms, Inc. v. GST Dev. Co., 135 Ga. App. 845, 219 S.E.2d 458 (1975).
Car dealership was entitled to summary judgment in a wrongful repossession action because the terms of the promissory note and both installment contracts were clear and unambiguous as to the dates when payment was due; the purchaser's testimony that sought to contradict or vary those terms based on a situation that required the bill of sale and installment contract to be redone to reflect the correct trade-in allowance was inadmissible under the parol evidence rule in O.C.G.A. § 13-2-2(1) and thus created no material issue of fact. Coleman v. Arrington Auto Sales & Rentals, 294 Ga. App. 247, 669 S.E.2d 414 (2008).
Absent fraud, accident, or mistake, writing which appears complete and certain, conclusively presumed complete.
- When parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements cannot be allowed to add to, take from, or vary the written instrument. Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944).
When parties have reduced to writing what appears to be complete and certain agreement, it will, in absence of fraud, accident, or mistake, be conclusively presumed that writing contains entire contract. Smith v. Standard Oil Co., 227 Ga. 268, 180 S.E.2d 691 (1971).
4. Incomplete Agreements
Where circumstances indicate writing not intended to be complete, consistent, separate, oral agreement admissible.
- When contract appears to have been reduced to writing, before parol evidence can be admitted to show collateral agreement, it must appear, either from contract itself or from attendant circumstances, that contract is incomplete and that what is sought to be shown as collateral agreement does not in any way conflict with or contradict what is contained in writing. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 37 S.E. 485, 81 Am. St. R. 28 (1900).
General rule is that parol evidence is not admissible to add to, take from, or vary a written contract. Rule which permits parol proof in case of apparent incompleteness in written statements of obligations of parties, denies parol proof variant from written terms, which imposes additional and other terms dependent upon prior or contemporaneous parol agreement. All previous negotiations are merged in subsequent written contract, and an additional obligation cannot be grafted thereon by parol testimony. Boston Ins. Co. v. H.B. Burch & Bros., 40 Ga. App. 517, 150 S.E. 458 (1929).
Party entitled to prove existence of any separate oral agreement as to any matter on which document is silent, and which is not inconsistent with the document's terms, if from circumstances of case, court infers that parties did not intend document to be complete and final statement of whole of transactions between the parties. Preferred Risk Mut. Ins. Co. v. Jones, 233 Ga. 423, 211 S.E.2d 720 (1975).
Parol agreement which assumes unchanged validity of apparently incomplete writing, admissible to complete writing.
- When instrument incomplete on the instrument's face, parol evidence is allowed to show agreement referable to incompleteness when parol agreement assumes unchanged validity of contract as expressed in written terms of note, and deals with possible contingency in future as to which separate or suppletory agreement is made. Bowen v. Swift & Co., 52 Ga. App. 793, 184 S.E. 625 (1936).
When writing incomplete on the writing's face, parol evidence consistent with written terms is admissible.
- When writing does not purport to contain all the stipulations of the contract, parol evidence is admissible to prove portions thereof not inconsistent with writing. Barclay v. Hopkins, 59 Ga. 562 (1877); Bank of Abbeville v. Georgia Fertilizer & Oil Co., 154 Ga. 44, 113 S.E. 146 (1922).
Rule which permits parol proof in cases of apparent incompleteness in written statements of obligations of parties, denies parol proof variant from written terms, which imposes additional and other terms dependent upon prior or contemporaneous parol agreement. Johnson v. Nisbet, 137 Ga. 150, 72 S.E. 915 (1911); Bank of Abbeville v. Georgia Fertilizer & Oil Co., 154 Ga. 44, 113 S.E. 146 (1922).
Parol evidence is admissible to explain ambiguity, and where writing does not purport to contain all stipulations of contract, such other or additional stipulations may be shown by parol. Head v. Waycross Coca-Cola Bottling Co., 47 Ga. App. 842, 171 S.E. 583 (1933).
While it is the general rule that parol or extrinsic evidence is not admissible to vary, add to, modify, or contradict terms or provisions of written instrument, if writing does not purport to contain all stipulations of contract, parol evidence shall be admissible to prove other portions thereof not inconsistent with writing; so collateral undertakings between parties would not properly be looked for in writing. Shubert v. Speir, 201 Ga. 20, 38 S.E.2d 835 (1946).
If writing appears on the writing's face to be an incomplete contract and if parol evidence offered is consistent with and not contradictory of terms of written instrument, then parol evidence is admissible to complete agreement between parties. Preferred Risk Mut. Ins. Co. v. Jones, 233 Ga. 423, 211 S.E.2d 720 (1975); Doyle v. Estes Heating & Air Conditioning, Inc., 173 Ga. App. 491, 326 S.E.2d 846 (1985); Thomas v. Clark, 178 Ga. App. 823, 344 S.E.2d 754 (1986); Pounds v. Hospital Auth., 191 Ga. App. 689, 382 S.E.2d 602 (1989).
Extrinsic evidence admissible to establish intent behind and meaning of incomplete ambiguous contract.
- If written contract is incomplete and meaning is uncertain and left to inference, extrinsic evidence is competent for purpose of showing intent of parties and establishing full meaning of contract. Chambliss v. Hall, 113 Ga. App. 96, 147 S.E.2d 334 (1966).
Parol evidence admissible to show that land is located within described area.
- The answer to the question whether the property in dispute was or was not located within Lot 34 of a recorded subdivision plat was not evident from an examination of the plat; the testimony of witnesses was necessary to aid the court in interpreting the warranty deeds and plat and did not offend the parol evidence rule since it has been specifically held that parol evidence is admissible to show that certain land is located within property described in a deed. Lawhorne v. Soltis, 259 Ga. 502, 384 S.E.2d 662 (1989).
5. Ambiguous Agreements
Parol testimony admissible for ascertaining intention of parties where contract is ambiguous. Taylor Freezer Sales Co. v. Hydrick, 138 Ga. App. 738, 227 S.E.2d 494 (1976).
Parol evidence did not resolve ambiguity.
- Grant of summary judgment for the realty company was error since the contract was ambiguous as to whether the real estate commission was refundable once the property sale failed to close, and a question of material fact existed as to the parties' intent on that issue; the issue could not be resolved by application of the rules of contract construction, O.C.G.A. § 13-2-3, nor by parol evidence, O.C.G.A. § 13-2-2. Krogh v. Pargar, LLC, 277 Ga. App. 35, 625 S.E.2d 435 (2005).
Parol evidence admissible to explain ambiguities but not to contradict or vary written instrument.- In case of written contract, all attendant and surrounding circumstances can be proven and if there is ambiguity, parol evidence is admissible to explain the ambiguity. But parol evidence cannot be employed to add to, take from, or vary the terms of a written instrument. R.C. Craig, Ltd. v. Ships of Sea, Inc., 401 F. Supp. 1051 (S.D. Ga. 1975).
When written contract incorporates ambiguous condition, parol evidence admissible to aid in construction of condition. Columbia Nitrogen Corp. v. Dean's Power Oil Co., 136 Ga. App. 879, 222 S.E.2d 602 (1975).
Although parol evidence as to surrounding circumstances is admissible to explain ambiguities and to aid in construction of contracts, parol evidence which contradicts or varies terms of written instrument is inadmissible. Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 263 S.E.2d 138 (1980).
Parol evidence is admissible to explain an ambiguity in a written contract, although such evidence is inadmissible to add to, take from, or vary the writing itself. Andrews v. Skinner, 158 Ga. App. 229, 279 S.E.2d 523 (1981).
If written contract contains either latent or patent ambiguities, parol evidence is admissible for explanatory purposes. Universal Profile, Inc. v. Atlanta Fed. Sav. & Loan Ass'n, 6 Bankr. 196 (Bankr. N.D. Ga. 1980).
Ambiguity defined.
- Ambiguity in contract may be defined as duplicity, indistinctness, and uncertainty of meaning or expression. Tarbutton v. Duggan, 45 Ga. App. 31, 163 S.E. 298 (1932); McKee v. Cartledge, 79 Ga. App. 629, 54 S.E.2d 665 (1949); Taylor v. Estes, 85 Ga. App. 716, 70 S.E.2d 82 (1952); Salvatori Corp. v. Rubin, 159 Ga. App. 369, 283 S.E.2d 326 (1981).
Word or phrase is ambiguous only when the word or phrase is of uncertain meaning, and may be fairly understood in more ways than one. Burden v. Thomas, 104 Ga. App. 300, 121 S.E.2d 684 (1961).
A contract is not ambiguous, even where difficult to construe, unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties. Crooks v. Crim, 159 Ga. App. 745, 285 S.E.2d 84 (1981); Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).
Distinction between ambiguity which imports doubleness and uncertainty and that which imports no meaning.
- There is difference between ambiguity, which imports doubleness and uncertainty of meaning, and that degree of indefiniteness which imports no meaning at all; former can be explained by parol; latter cannot be merely explained, but a deficiency must be supplied. Wiley v. Tom Howell & Assocs., 154 Ga. App. 235, 267 S.E.2d 816 (1980).
Ambiguity involves choice between two or more constructions of contract. Where, there is no ambiguity, and the terms of the contract are not set out with sufficient particularity to enable the court to say what in fact was intended by parties as full compliance, then matter of choice between two or more constructions is not involved. Burden v. Thomas, 104 Ga. App. 300, 121 S.E.2d 684 (1961).
Construction of ambiguous physician's services contract.
- Interpreting a contract so as to give effect to each provision as required by O.C.G.A. § 13-2-2(4), a court rejected a hospital's argument that the hospital was not obligated under the terms of a physician's services contract to pay the physician during the 60-day period between notice of termination and the termination itself because the interpretation of a provision that the physician would provide services on an as-needed basis as scheduled by the hospital would render meaningless the contract's provisions distinguishing between offenses that were grounds for immediate termination from offenses that were grounds for possible termination if not cured and provisions for termination without cause, all of which had different notice requirements. Chaudhuri v. Fannin Reg'l Hosp., Inc., 317 Ga. App. 184, 730 S.E.2d 425 (2012).
No ambiguity such as to admit parol evidence unless, after construction, parties' intent remains uncertain.
- There can be no ambiguity within rule as to admission of parol evidence unless and until application of pertinent rules of interpretation leaves it really uncertain which of two or more possible meanings represents the true intention of the parties. McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945).
Mere clerical error.
- In a taxpayer's action against the Internal Revenue Service (IRS), under 28 U.S.C.S. § 1346(a)(1), seeking to recover funds paid to the IRS after the IRS informed the taxpayer that the taxpayer incorrectly deducted past collateral agreement payments from adjusted gross income (AGI) when computing "annual income" under the terms of an Offer in Compromise (OIC), the district court properly found under O.C.G.A. §§ 13-2-1 and13-2-2(4) that the OIC and the Collateral Agreement were unambiguous and that the taxpayer was not entitled to deduct the past collateral agreement payments from AGI; the IRS's use of an older version of the Form 2261, which referenced an item line in Form 656 that permitted the illogical deduction of a social security number in the calculation of annual income, was a mere clerical error that was not sufficiently misleading so as to create an ambiguity in the contracts. Begner v. United States, 428 F.3d 998 (11th Cir. 2005).
Bank signature card.
- In an action involving the unauthorized transfer of funds, the signature card which embodied the contract between the parties was ambiguous since both names of appellee and her late father appeared on the front of the card, but only the latter's "x" appeared on the reverse side; therefore, appellee's contemporaneous parol evidence was admissible in an effort to determine the parties' intent. Washington Loan & Banking Co. v. Mitchell, 162 Ga. App. 749, 292 S.E.2d 424 (1982).
Spousal and child support.
- Parol evidence could not have been admitted to contradict the language of an agreement to award support to wife and children. Van Dyck v. Van Dyck, 263 Ga. 161, 429 S.E.2d 914 (1993).
Construction of insurance contract.
- Summary judgment was properly granted to an insured pursuant to O.C.G.A. § 9-11-56(c) and denied to an insurer in the insured's action seeking to collect unpaid claims under the insured's policy wherein the insured was entitled to indemnification for losses arising from employee dishonesty; however, based on the construction rules of O.C.G.A. § 13-2-2, the ambiguous non-cumulative policy liability limit was construed in the insured's favor, but could not be interpreted to allow the limit for each of the years of coverage, but rather, the limit was applied to the entire three-year policy period. Cincinnati Ins. Co. v. Sherman & Hemstreet, Inc., 260 Ga. App. 870, 581 S.E.2d 613 (2003), aff'd, 277 Ga. 734, 594 S.E.2d 648 (2004).
After an insured designated the insured's former spouse and the insured's mother as each being 100% beneficiaries of the insured's life insurance policy, ambiguity existed, but parol evidence admitted under O.C.G.A. § 13-2-2(1), which included testimony from a benefits coordinator at the insured's employer, through whom the policy was purchased, established that the insured had intended to create contingent beneficiaries, thus entitling the former spouse, who was listed first, to the entire policy proceeds. Henninger v. Std. Ins. Co., F.3d (11th Cir. June 2, 2009)(Unpublished).
Because the Railroad Retirement Act of 1974, 45 U.S.C. § 231 et seq., and Social Security Act, 42 U.S.C. § 301 et seq., were similar, the disability insurance policy's offset provision was not afflicted with any ambiguity, and the district court should not have resorted to canons of construction to determine the unwritten intent of the provision. Duckworth v. Allianz Life Ins. Co. of N. Am., 706 F.3d 1338 (11th Cir. 2013).
When the Federal Deposit Insurance Corporation, as receiver for a bank, brought a separate lawsuit against former bank officers for gross negligence, and an insurance policy excluded from coverage actions brought "by or on behalf of" any "insured" or the "company," summary judgment was inappropriate regarding coverage because the "insured-versus-insured" exclusion was ambiguous and extrinsic evidence may have been necessary to determine the parties' intent. St. Paul Mercury Ins. Co. v. FDIC, 774 F.3d 702 (11th Cir. 2014).
Construction of real estate.
- Trial court properly found that a transferor's claim of ownership of a strip of land between a lot deeded to the transferor's son and an owner's property was unsupported since the deed from the transferor to the son was unambiguous and clearly showed that the land deeded to the son extended to the border of the owner's property. Hale v. Scarborough, 279 Ga. App. 614, 631 S.E.2d 812 (2006).
Construction of ambiguous commercial lease.
- In a suit wherein the buyer/lessor of a shopping center asserted a breach of contract claim against the seller/lessee, the trial court properly found ambiguous the commercial lease entered into in conjunction with the sale because the contract did not define master lease and did not address a build out time granted to new tenants before rent was due from them; therefore, a judgment against the seller/lessor was proper. 4 G Props., LLC v. GALS Real Estate, Inc., 289 Ga. App. 315, 656 S.E.2d 922 (2008).
No ambiguity existed in trust document.
- Order denying the appellant's request to terminate a family trust was reversed because the trial court erred in finding an ambiguity with regard to the trust instruments' termination provisions and in considering parol evidence to interpret those provisions as there was no ambiguity that the trust was to exist until the settlor's death, which had occurred. Jackson v. Nowland, 338 Ga. App. 614, 791 S.E.2d 190 (2016).
6. Admissibility of Circumstances Surrounding Execution
For purpose of aiding in interpretation of contract, surrounding circumstances may be proved. Salvatori Corp. v. Rubin, 159 Ga. App. 369, 283 S.E.2d 326 (1981).
Circumstances surrounding execution of contract are proper subjects of proof by parol evidence. Universal Profile, Inc. v. Atlanta Fed. Sav. & Loan Ass'n, 6 Bankr. 196 (Bankr. N.D. Ga. 1980).
Although under O.C.G.A. §§ 13-2-2(1) and former24-6-1 (see now O.C.G.A. § 24-3-1), parol evidence was inadmissible to add to, take from, or vary a written contract, the evidence was properly admitted to show that a promisor who died signing a guaranty had actually signed the guaranty. A store employee testified that the employee witnessed the store owner sign the guaranty. John Deere Co. v. Haralson, 278 Ga. 192, 599 S.E.2d 164 (2004).
Surrounding circumstances may explain but not vary written agreement.
- Ambiguities and words of doubtful meaning are often explained by considering surrounding circumstances. Matters outside contract are frequently looked to when those matters can aid construction. In other words, those matters may be looked to to explain but never to vary. A contract free from ambiguity is conclusively presumed to express the intention of the parties. Foote & Davies Co. v. Southern Wood Preserving Co., 11 Ga. App. 164, 74 S.E. 1037 (1912).
Circumstances surrounding execution, ambiguities, and verbal portion of partly written contract may be shown by parol. Lagenback v. Mays, 205 Ga. 706, 54 S.E.2d 401 (1949).
For purpose of aiding in interpretation of contracts, all attendant and surrounding circumstances may be proved, and if there is ambiguity, latent or patent, the ambiguity may be explained, and parol evidence is admissible for this purpose. Tarbutton v. Duggan, 45 Ga. App. 31, 163 S.E. 298 (1932).
When it appears from the face of the contract or attendant circumstances that the contract is incomplete, parol evidence is admissible to prove collateral agreements which do not in any way conflict with what is contained in the writing. Universal Profile, Inc. v. Atlanta Fed. Sav. & Loan Ass'n, 6 Bankr. 196 (Bankr. N.D. Ga. 1980).
Court should place itself in situation of parties.
- When language is ambiguous and susceptible of more than one construction, court should attempt to place itself as near as possible in situation of parties to it at time agreement was entered into, so that the court may view circumstances as viewed by parties, and thus be enabled to understand language used in sense with which parties used the language. In order to accomplish this object it is generally proper for court to take notice of surroundings and attendant circumstances, and construe language used in light of such circumstances. Carter v. Marble Prods., Inc., 171 Ga. 49, 154 S.E. 891 (1930).
Jury to consider circumstances surrounding transaction.
- In an action between an insurer and its insured regarding the insured's claim for additional coverage, because the provisions regarding blanket liability and additional limits of liability were ambiguous, and application of O.C.G.A. § 13-2-2 was insufficient to eliminate the ambiguity in that it was impossible to ascertain how much coverage was provided for the items at issue, particularly soft cost, a jury was to consider the circumstances surrounding the transaction to determine the scope and effect of the policy; hence, the insured was erroneously granted partial summary judgment on the issue. RLI Ins. Co. v. Highlands on Ponce, LLC, 280 Ga. App. 798, 635 S.E.2d 168 (2006).
If parties' intentions ascertainable from writing, attendant circumstances inadmissible.
- Whether receipt of promissory note amounts to payment of pre-existing debt depends upon intention of parties. If such intention can be gathered with certainty from papers themselves, resort need not be had to attending circumstances. If papers are ambiguous, parol evidence is admissible to establish intent. Hall's Self-Feeding Cotton Gin Co. v. Black, 71 Ga. 450 (1883).
In a breach of contract action, extrinsic evidence was properly set forth in the record explaining an insurance program referenced in the contracts existing before the inception of, and continues to exist independently of, a city's international terminal airport construction project. Archer W. Contrs., Ltd. v. Estate of Estate of Pitts, 292 Ga. 219, 735 S.E.2d 772 (2012).
7. Admissibility of Parol Evidence to Show Fraud
Parol evidence admissible to show contract procured by fraud.
- When alleged misrepresentations go to inducement of contract rather than promise to perform under contract, parol evidence is admissible to show that contract was procured by fraud. Smith v. Jones, 154 Ga. App. 629, 269 S.E.2d 471 (1980).
Parol evidence is admissible to prove that one was fraudulently induced to enter into contract. Universal Profile, Inc. v. Atlanta Fed. Sav. & Loan Ass'n, 6 Bankr. 196 (Bankr. N.D. Ga. 1980).
Purpose of evidence in such cases is not to vary terms, but to show invalidity. Universal Profile, Inc. v. Atlanta Fed. Sav. & Loan Ass'n, 6 Bankr. 196 (Bankr. N.D. Ga. 1980).
Oral representations made as inducements to contract inadmissible to add to, take from, or vary writing. Pepsico Truck Rental, Inc. v. Eastern Foods, Inc., 145 Ga. App. 410, 243 S.E.2d 662 (1978).
Violation of inconsistent, contemporaneous parol agreement not fraud such as permits varying written instrument.
- Making and violating contemporaneous parol agreement if inconsistent with writing would not be such fraud as to permit varying of written instrument where no sufficient reason appears why agreement was not incorporated in writing. Bowen v. Swift & Co., 52 Ga. App. 793, 184 S.E. 625 (1936).
Parol evidence is admissible to explain capacity in which one signed ambiguous agreement. Dundon v. Forehand, 152 Ga. App. 749, 263 S.E.2d 687 (1979).
Admission of affidavits to show second life insurance beneficiary designation form void.
- Trial court erred by granting summary judgment to a child in a suit brought by a sibling seeking a determination that the sibling was the sole beneficiary of their parent's life insurance policy as the sibling sufficiently alleged fraud and/or forgery with regard to a second beneficiary designation form allegedly signed by the parent. As such, the trial court should have permitted the sibling to introduce two affidavits that supported the sibling's allegations that the second beneficiary designation form was void. Weatherly v. Weatherly, 292 Ga. App. 879, 665 S.E.2d 922 (2008).
8. Evidentiary Issues
Testimony of plaintiff's witness which directly conflicted with provisions of policy was without probative value. Peninsular Cas. Co. v. McCloud, 47 Ga. App. 316, 170 S.E. 396 (1933).
Admissibility of parol evidence to prove failure of consideration.
- Where in some instances parol evidence that real consideration of contract is different from that actually recited in instrument is admissible for purpose of proving that true consideration has failed, it is never allowable, under guise of inquiring into consideration, to vary or contradict by parol the substance and meaning of written terms of contract itself. Middlebrooks v. Dunlap-Huckabee Auto Co., 44 Ga. App. 543, 162 S.E. 153 (1932).
Determination as to timeliness of objection to introduction of parol evidence is unnecessary, since parol evidence, by its nature, is incompetent and without probative value to alter terms or conditions of written contract. Lyon v. Patterson, 138 Ga. App. 816, 227 S.E.2d 423 (1976).
Mere ambiguities as to subject matter may be supplied by parol evidence, and this even though contract recites that the contract contains entire agreement between parties. Jones v. Ely, 95 Ga. App. 4, 96 S.E.2d 536 (1957).
Parol testimony may explain written terms when doubtful, and if those terms do not show clear meaning, understanding of parties may be shown outside to ascertain meaning. First Nat'l Bank v. Hancock Whse. Co., 142 Ga. 99, 82 S.E. 481 (1914).
Directed verdict improper where ambiguity remains.
- If after the introduction of parol evidence, there remains a conflict in the evidence as to the intent of the parties, this disagreement is an evidentiary, factual matter for resolution by the jury and not a matter of law for determination by the court, and it is error to grant a motion for directed verdict. Karlan, Inc. v. King, 202 Ga. App. 713, 415 S.E.2d 319 (1992), overruled in part by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019).
Extension of car rental agreement.
- Even where a car rental contract specified that the contract could not be changed except by writing, the renter's retention of the car and the fact that both the renter and the renter insurance company paid for the car until the car was damaged in a collision showed the parties intended to and did modify the original contract by extending the contract's term. Thompson v. Enterprise Leasing Co., 240 Ga. App. 222, 522 S.E.2d 670 (1999).
9. Application
Signing writing with blanks left to be filled in by other party binds signer. Butts v. Atlanta Fed. Sav. & Loan Ass'n, 152 Ga. App. 40, 262 S.E.2d 230 (1979).
To show one signed as agent requires that contract purport to be that of principal.- Parol evidence is not admissible to show that one signed written contract under seal as agent unless contract purports upon the contract's face to be contract of principal. Universal Profile, Inc. v. Atlanta Fed. Sav. & Loan Ass'n, 6 Bankr. 196 (Bankr. N.D. Ga. 1980).
Right of first offer.
- A right of first offer (RFO) did not require seller's notice to be sent upon plaintiff executrix's formation of a desire to sell the property at issue for two reasons: (1) a contrary interpretation was contrary to the obvious intent of the parties at the time the parties entered into the sale agreement at issue, O.C.G.A. § 13-2-3; and (2) a contrary construction would have rendered a portion of the contract meaningless, O.C.G.A. § 13-2-2(4). Stephens v. Trust for Pub. Land, 479 F. Supp. 2d 1341 (N.D. Ga. 2007).
Loan documents.
- Regardless of whether a note's reference to collecting fees when "legal proceedings are instituted" meant a lawsuit needed to have been filed to obtain fees under the note, a loan agreement signed contemporaneously with the note clearly entitled the lender to attorney fees if the borrowers defaulted on the loan whether or not there was a lawsuit, and, since the borrowers admitted that the borrowers defaulted on the loan, the trial court erred in concluding that the loan documents required the lender to file suit before the lender was entitled to collect attorney fees. Lovell v. Thomas, 279 Ga. App. 696, 632 S.E.2d 456 (2006).
Maker of a note, when sued, has right to show by parol want or failure of consideration, but the maker will not be allowed to prove that the maker's obligation to pay was dependent or conditional upon promisee's compliance with prior or contemporaneous agreement not expressed in note, unless execution of note was induced by fraud, accident, or mistake. Virginia-Carolina Chem. Corp. v. Fuller, 35 F. Supp. 482 (N.D. Ga. 1940); Smith v. Standard Oil Co., 227 Ga. 268, 180 S.E.2d 691 (1971).
Employment contract setting out mutual obligations.
- When written employment contract states consideration, not by mere recital of something paid or to be paid, but sets forth mutual obligations which constitute terms of contracts, parol evidence is not admissible to show that their true consideration was lifetime employment promise of alleged prior oral agreement. Vulcan Materials Co. v. Douglas, 131 Ga. App. 21, 205 S.E.2d 84 (1974).
Appointment letter not an employment contract.
- In a wrongful termination case, the trial court erred by failing to grant the motion for summary judgment filed by a university's board of regents because the employee was at will based on an interpretation of the appointment letter, which did not provide a definite, specific term of employment and stated that the employment was at the pleasure of the president; thus, the employee's termination was not a breach of contract. Freeman v. Smith, 324 Ga. App. 426, 750 S.E.2d 739 (2013), overruled on other grounds by Franklin v. Pitts, 349 Ga. App. 544, 826 S.E.2d 427 (2019).
Admissibility of parol evidence to identify subject matter of article named in written contract.
- When name of article, as used in written contract, is ambiguous and uncertain term which does not of itself disclose character of material, parol evidence is admissible, not to contradict, add to, or vary terms of written contract, but to identify subject matter thereof, and to explain what ambiguous term meant. Porter v. Sterling Prods. Co., 40 Ga. App. 522, 150 S.E. 457 (1929).
Admissibility of parol evidence as to agreement containing integration clause.
- Prior and contemporaneous statements and agreements cannot be shown to vary, contradict, or change the terms of a valid written contract purporting on the contract's face to contain all the terms of agreement between parties. Taylor Freezer Sales Co. v. Hydrick, 138 Ga. App. 738, 227 S.E.2d 494 (1976).
Contract stipulating whole agreement.
- If contract is in fact ambiguous as to some matters, stipulation in contract to effect that the contract expresses whole agreement and that there is no agreement or modification of any kind in connection therewith that is not expressly set forth therein will not prevent explanation in usual manner. Wood v. Phoenix Ins. Co., 199 Ga. 461, 34 S.E.2d 688 (1945).
Admissibility of parol evidence of site plan to show nonexistence of use restriction.
- In a land use restriction action, a trial court erred by failing to consider a 1997 site plan, which allowed the parties to seek to amend the use of the land at issue and future development of the land; therefore, the trial court erred in enjoining a developer from constructing condominium towers since no such use restriction existed. CPI Phipps, LLC v. 100 Park Ave. Partners, L.P., 288 Ga. App. 614, 654 S.E.2d 690 (2007), cert. denied, No. S08C0618, 2008 Ga. LEXIS 286 (Ga. 2008).
Applicability of parol evidence rule to suit against surety on real estate bond.
- See Pfeffer v. General Cas. Co. of Am., 87 Ga. App. 173, 73 S.E.2d 234 (1952).
Application of parol evidence rule as to open price term in option agreement.
- Option agreements have generally been held or recognized to be sufficiently definite as to price to justify the agreement's enforcement if either specific price is provided for in agreement or a practical mode is provided by which price can be determined by the court without any new expression by parties themselves; the agreement must be complete within itself as to essential elements or a key or practical mode provided within contract by which definite price may be ascertained, and if there is such deficiency, parol evidence is not admissible to add to, take away from, or vary the written contract, but would be admissible to explain ambiguities. Wiley v. Tom Howell & Assocs., 154 Ga. App. 235, 267 S.E.2d 816 (1980).
Parol evidence is admissible to explain meaning of technical terms employed in written contracts. Pace Constr. Corp. v. Houdaille-Duvall-Wright Div., 247 Ga. 367, 276 S.E.2d 568 (1981).
Parol evidence is inadmissible to show parties' intentions in lease and debt.
- Summary judgment was properly entered for a lessee bank on a lessor developer's counterclaim against it, which alleged that the bank was obligated to pay the entire debt to the bondholder incurred to fund the project, rather than the debt service over the 15-year term of the lease, as the parties knew that the lease term was 15 years and that the term of the note was 20 years, yet failed to specifically provide that the bank pay the debt after the lease expired; parol evidence was inadmissible under O.C.G.A. § 13-2-2(1) to prove the parties' intentions as the lease was unambiguous. Porter Communs. Co. v. SouthTrust Bank, 268 Ga. App. 29, 601 S.E.2d 422 (2004).
Both the terms "approximately" and "firm order" in a sales contract were ambiguous in that their indistinctiveness made their meaning uncertain and capable of more than one reasonable definition. These ambiguities rendered it appropriate for the trial court, as trier of fact, to consider parol evidence to determine the meaning of those material terms and thus the true agreement between the parties. Wahnschaff Corp. v. O.E. Clark Paper Box Co., 166 Ga. App. 242, 304 S.E.2d 91 (1983).
When promissory note not containing entire agreement, letters by parties containing additional terms admissible.
- When promissory note did not express entire contract between parties, but remainder thereof was contained in letters written by the parties in connection with making of note, such letters were admissible in evidence, in suit between maker and one who took note after maturity. Marietta Sav. Bank v. Janes, 66 Ga. 286 (1881).
Applicability of parol evidence rule to promissory note.
- To the extent plaintiff was relying on conversations "to add to, take from or vary" the terms of the plaintiff's promissory note with defendant bank, the conversations were barred by the parol evidence rule. S & A Indus. v. Bank Atlanta, 247 Ga. App. 377, 543 S.E.2d 743 (2000).
Parol evidence when loan note in writing.
- Judgment for amount of note sued on, with interest, was not contrary to law and evidence because lender, at time of making loan and executing note and bill of sale, stated to borrower that, if first installment of loan was not paid, the lender would sell certain shares of stock, conveyed by borrower as collateral to satisfy indebtedness represented by note, as any parol statements and agreements made before or simultaneously with execution of note and bill of sale, which were inconsistent with provisions thereof, were merged into the writing. Allison v. United Small-Loan Corp., 54 Ga. App. 820, 189 S.E. 263 (1936).
Notes and bond for title are parts of same contract, and stipulation in bond for title should have same effect as if contained in notes; only difference is one of position. Construing all documents together, dates of maturity as fixed in notes are necessarily subject to accelerating clause in bond for title. In such a case maker promises to pay on a certain day, and earlier on condition. Gilford v. Green, 33 Ga. App. 1, 125 S.E. 80 (1924).
Note and mortgage written on same paper at same time, construed as one contract.
- When note and mortgage given to secure it are written upon same paper and executed at same time, they must be construed as constituting but one contract. Smith v. Downing Co., 21 Ga. App. 741, 95 S.E. 19 (1918), and see Read v. Gould, 139 Ga. 499, 77 S.E. 642 (1913); Adams v. Hatfield, 17 Ga. App. 680, 87 S.E. 1099 (1916).
Promissory note for "value received" and imposing no obligation upon payee is facially incomplete agreement.
- Ordinary promissory note in which consideration is recited only as "value received," and which contains no provision imposing any obligation upon payee, does not purport to contain all stipulations of contract relative to subject matter for which it is given. When terms and stipulations of such contract rest in parol agreements and understandings between parties, and do not in any way contradict terms of note, they may be established as part of contract. Buckeye Cotton Oil Co. v. Malone, 33 Ga. App. 519, 126 S.E. 913 (1925).
Parol evidence admissible if contract ambiguous as to description, model, and style of time sold.
- If contract of sale was ambiguous or completely lacking as to description of model, style, and size of refrigerator intended to be sold, door was open to parties to show by parol evidence just what model, style and size of refrigerator was intended to be conveyed by contract. Raymond Rowe Furn. Co. v. Simms, 84 Ga. App. 184, 65 S.E.2d 830 (1951).
When note not entire agreement, stipulated price not preclusive of proof of other distinct agreements.
- When note was not intended as entire contract, but was given in pursuance of contract for sale of described land, agreement in note to pay specified amount was not exclusive of proof of other distinct agreements which parties might have made in relation to land, such as agreement that purchaser was to take up certain papers necessary to acquire good title, and to deduct amount so expended in perfecting title from purchase price of property. Long v. Cash, 54 Ga. App. 764, 189 S.E. 73 (1936).
If contract silent as to price, evidence as to reasonable price may be offered. J. T. Stewart & Son v. Cook, 118 Ga. 541, 45 S.E. 398 (1903).
Proof of existence of undisclosed principal by parol evidence.
- When fact of agency is concealed, it is ordinarily necessary to prove by parol evidence existence of undisclosed principal. United States Fid. & Guar. Co. v. Coastal Serv., Inc., 103 Ga. App. 133, 118 S.E.2d 710 (1961).
When contract not under seal, parol evidence admissible to establish existence of undisclosed principal.
- Since there was nothing in record to show that contract for purchase of car was under seal, testimony of agent that the agent was acting for an undisclosed principal was properly admitted; thus, fact that agency was not disclosed at time of contract would not prevent principal from enforcing contract in the principal's own name. United States Fid. & Guar. Co. v. Coastal Serv., Inc., 103 Ga. App. 133, 118 S.E.2d 710 (1961).
Admissibility of extrinsic evidence to show agency as to integrated contract.
- If fact of agency does not appear in integrated contract, agent who appears to be party thereto cannot introduce extrinsic evidence to show that one is not a party, except: (a) for purpose of reforming contract; or (b) to establish that one's name was signed as business name of principal and that it was so agreed by parties. Haas v. Koskey, 138 Ga. App. 448, 226 S.E.2d 279 (1976).
Parol evidence of a decedent's instructions to a trustee as memorialized in a memorandum written by a trust officer was admissible to show the types of investments permitted; the trust agreement was silent as to the types of investments permitted and the memorandum was contemporaneous with the contract. Namik v. Wachovia Bank of Ga., 279 Ga. 250, 612 S.E.2d 270 (2005).
When description applies equally to several tracts, it may be shown which tract grantor claims.
- When description of land applies equally to several tracts, a latent ambiguity results, which may be explained by showing which one of the several tracts was claimed by grantor. Petretes v. Atlanta Loan & Trust Co., 161 Ga. 468, 131 S.E. 510 (1926); Stanaland v. Stephens, 78 Ga. App. 68, 50 S.E.2d 258 (1948).
Assignment of "goods and effects in storehouse" subject to parol evidence regarding contents and value.
- After one made assignment for benefit of creditors, of "all goods and effects now in store-house on Cherry Street", parol evidence in regard to the circumstances attending and surrounding assignment was admissible in order to explain ambiguity as to what were goods and effects covered by the assignment, and to show their value. Block v. Peter, 63 Ga. 260 (1879).
Parol evidence inadmissible to contradict deeds absolute on their face. Garrett v. Diamond, 144 Ga. App. 428, 240 S.E.2d 912 (1977).
Since unambiguous deed is instrument that necessarily speaks for itself, parol evidence is inadmissible to add to, take from, or vary the deed's terms in any way. Turk v. Jeffreys-McElrath Mfg. Co., 207 Ga. 73, 60 S.E.2d 166 (1950).
Parol contemporaneous agreement cannot vary absolute, unconditional promissory note.
- Terms of absolute, unconditional promissory note cannot be varied by engrafting upon the note condition made by parol contemporaneous agreement. Stapleton v. Monroe, 111 Ga. 848, 36 S.E. 428 (1900); Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 37 S.E. 485, 81 Am. St. R. 28 (1900); Union Cent. Life Ins. Co. v. Wynne, 123 Ga. 470, 51 S.E. 389 (1905).
Parol evidence inadmissible to vary terms of official bonds which is absolute and unconditional on its face and conforms precisely to statute. Jones v. Smith, 64 Ga. 711 (1880).
Parol evidence inadmissible to add to or vary terms of clear, unambiguous, written rental contract. Little v. Lary, 12 Ga. App. 754, 78 S.E. 470 (1913).
Parol evidence of oral modification of agreement not admissible.
- Because the lease was required by the statute of frauds to be in writing, it could not be modified by an oral agreement, and the trial court did not err in excluding parol evidence of the alleged oral agreements between the parties. Citrus Tower Blvd. Imaging Ctr. v. David S. Owens, MD, PC, 325 Ga. App. 1, 752 S.E.2d 74 (2013).
Unconditional promise in note to pay cannot be contradicted by parol agreement.
- When promissory note contains an unconditional promise to pay, oral agreement between parties made contemporaneously with execution of note or prior thereto that maker would be relieved of any obligation to pay on condition not expressed in note, is incompetent to change contract as represented on face of note. Cairo Banking Co. v. Hall, 42 Ga. App. 785, 157 S.E. 346 (1931).
After contract complete, parol evidence inadmissible to show signature as agent if contract recites otherwise.
- After a contract recites that the contract represents the entire agreement between the parties, it cannot be shown by extrinsic parol evidence that one of signatories did not sign, as recited therein, on the signatory's own behalf, but signed as agent of another. Haas v. Koskey, 138 Ga. App. 448, 226 S.E.2d 279 (1976).
Parol lifetime employment contract superseded by inconsistent, complete, unambiguous written one.
- Parol lifetime employment contract upon which plaintiff relied, even if certain and definite enough to be enforceable, is superseded by inconsistent, valid, complete, unambiguous, written employment contracts covering same subject matter and providing for termination of employment by written notice. Vulcan Materials Co. v. Douglas, 131 Ga. App. 21, 205 S.E.2d 84 (1974).
Parol evidence was inadmissible, where an employment contract was complete on the contract's face, and contained precise language as to how employment could be terminated, such that no ambiguity existed for which parol evidence was required to assist the court in interpreting the contract. Nel v. DWP/Bates Tech., 260 Ga. App. 426, 579 S.E.2d 842 (2003).
When writing expressly limits effectiveness to 12 months, parol agreement inadmissible to add or vary.
- Written contract expressly limiting the contract's effectiveness to term of 12 months cannot be added to or varied by parol, contemporaneous agreement which attempts to set up agreement different from and contrary to that expressed in writing. Head v. Waycross Coca-Cola Bottling Co., 47 Ga. App. 842, 171 S.E. 583 (1933).
Parol testimony necessary to establish oral agreement and to connect it with written portion inadmissible.
- Where parol testimony is necessary both to establish oral agreement made contemporaneously with written deed and to connect it with written portion of contract (which had been executed) so as to show such part performance as to take oral agreement out of statute of frauds, such testimony not being admissible for either purpose, oral agreement cannot be established or enforced. Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936).
Parol evidence not admissible for insurance assignment.
- Pursuant to O.C.G.A. § 53-12-93, a creditor could not establish that the creditor was a beneficiary of a constructive trust because such a determination depended upon a finding that an assignment of a debtor's insurance proceeds occurred, giving the creditor an identifiable interest in the insurance proceeds; here, there was no written assignment, and oral conversations between the creditor and debtor about the insurance proceeds were not enough to constitute an assignment, particularly in light of the parol evidence rule, O.C.G.A. § 13-2-2. Aero Housewares, LLC v. Interstate Restoration Group, Inc. (In re Aero Plastics, Inc.), Bankr. (Bankr. N.D. Ga. Sept. 27, 2006).
Contract calling only for $14,000.00 cash, $14,500.00 to be financed, is unenforceable for indefiniteness.
- Written contract for sale of designated realty for consideration of $28,500.00 to be paid $14,000.00 cash, $14,500.00 to be financed, and containing no further enumeration of terms of payment, is unenforceable for indefiniteness and uncertainty and will not form basis of action by vendor against purchaser for damages for breach thereof. Stanaland v. Stephens, 78 Ga. App. 68, 50 S.E.2d 258 (1948).
Effect of merger clauses.
- Parties' management agreement contained a merger clause and, as such, a trial court did not err in refusing to admit a separate master agreement to which one of the parties was not a signatory. Rome Healthcare LLC v. Peach Healthcare Sys., 264 Ga. App. 265, 590 S.E.2d 235 (2003).
When a guarantor alleged that a lender promised to provide "100% financing" for a new facility, based on a merger clause, the guarantor could not state a claim against the lender for failing to honor an alleged promise that was not memorialized in the written agreement. Nissan Motor Acceptance Corp. v. Sowega Motors, Inc., F. Supp. 2d (M.D. Ga. Sept. 11, 2012).
Parol evidence of verbal agreements reflected in cover letter did not change employment contract.
- Trial court properly rejected a teacher's attempt to add verbal agreements to an employment contract where the agreements were made during the job interview process and were written in the cover letter that accompanied the proposed employment contract. There was no evidence that the cover letter was intended to be a part of the employment contract. Zhou v. LaGrange Acad. Inc., 266 Ga. App. 445, 597 S.E.2d 522 (2004).
Not admissible if contract unambiguous.
- Trial court properly struck a paragraph in an estate executrix's affidavit in opposition to the decedent's nephew's motion for summary judgment, arising from an action regarding estate assets and joint venture agreements, as the executrix's assertions regarding a handwritten note by the husband constituted parol evidence which could not be used to alter the meaning of the unambiguous language of the agreements, and necessity was not shown for admission of the hearsay evidence, pursuant to O.C.G.A. §§ 13-2-2(1), former24-3-1(b), former24-6-1, and former24-6-2 (see now O.C.G.A. §§ 24-8-801,24-8-802,24-3-1 and24-3-2); accordingly, the handwritten notation that the properties at issue were to be sold for "market value" could not change the contractual language that indicated that the properties would be sold for a predetermined price. Zaglin v. Atlanta Army Navy Store, Inc., 275 Ga. App. 855, 622 S.E.2d 73 (2005).
Condition precedent requiring performance under O.C.G.A. § 13-3-4 did not exist in a guaranty as the provision at issue regarding invoices being mailed to the surety on a monthly basis employed no explicit words of condition and there were no expressions in the entirety of the guaranty to the effect that the cited provision was to be construed as a condition precedent; since the provision was not ambiguous, the surety could not introduce parol evidence under O.C.G.A. § 13-2-2(1) that the guaranty was only effective if the surety received monthly billings. General Steel, Inc. v. Delta Bldg. Sys., 297 Ga. App. 136, 676 S.E.2d 451 (2009).
Specific provision prevails over general in employment contract.
- Former employee was improperly granted summary judgment on a claim regarding the term of the employment in the employer's suit asserting breach of the employment contract as, although the contract provided that the employment was generally at-will, it was subject to the former employee's agreement to refrain from terminating the employee's employment for 12 months. To the extent there was any conflict in terms as to whether the former employee could terminate the employment at-will or was limited to a fixed term of at least one year, the issue was resolved by upholding the minimum term since the provision specifically addressed the issue in question, which prevailed over any conflicting general language. Avion Sys. v. Thompson, 293 Ga. App. 60, 666 S.E.2d 464 (2008).
Construction of arbitration agreement.
- Failure of an arbitration agreement between a contractor and a limited liability company to name an architect in the blank space provided, while making continuing references to the role of the architect, created an ambiguity explainable by parole evidence. Tillman Park, LLC v. Dabbs-Williams Gen. Contrs., LLC, 298 Ga. App. 27, 679 S.E.2d 67 (2009).
Employer not entitled to commission payments.
- Upon a de novo review of the plain terms outlined in an employment contract, a former employer was not entitled to receive commission payments from its former employee, a licensed sales agent, for deals closed with the employee's subsequent employer, as any contrary reading would result in an unenforceable contract under O.C.G.A. § 43-40-19(c); hence, summary judgment was properly granted to the employee on that issue, and the former employer's claim for money had and received also failed. Richard Bowers & Co. v. Creel, 280 Ga. App. 199, 633 S.E.2d 555 (2006).
Incomplete agreement between home purchaser and contractor.
- Home purchasers were not entitled to summary judgment on a contractor's quantum meruit claim because although the parties had entered into written agreements, factual issues remained regarding the scope of work contemplated in the construction agreement, and additional evidence under O.C.G.A. § 13-2-2(1) was necessary to establish the plans, specifications, and drawings agreed upon by the parties as Exhibit B to the agreement was blank. Bollers v. Noir Enters., 297 Ga. App. 435, 677 S.E.2d 338 (2009).
Intent of parties obtained by parol evidence.
- It is duty of court to construe contracts unless they are ambiguous, in which event parol testimony may be admitted for purpose of ascertaining intention of parties. Knight v. Causby, 68 Ga. App. 572, 23 S.E.2d 458 (1942).
Action to recover on promissory notes.
- In an action to recover on two promissory notes, because material fact issues remained regarding the consideration given for the notes, creating an ambiguity for which parol evidence was admissible, and as to whether the notes were signed as part of the same transaction, summary judgment to either the lender or the debtor was inappropriate. Foreman v. Chattooga Int'l Techs., Inc., 289 Ga. App. 894, 658 S.E.2d 470 (2008).
Parol evidence admissible in easement agreement dispute.
- Because the language of an easement agreement between two adjacent commercial landowners was ambiguous, parol evidence was admissible to show the parties' intent. Thus, questions of fact remained regarding intent, making summary judgment inappropriate. McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga. App. 595, 660 S.E.2d 397 (2008).
Plain language of easement.
- Trial court properly entered a temporary restraining order directing that the north entrance to a shopping center be opened instanter because a 2004 easement was clear and unambiguous and provided for full enjoyment of the easement of ingress and egress to the shopping center. Nat'l Hills Exch. v. Thompson, 319 Ga. App. 777, 736 S.E.2d 480 (2013).
Construction of Words
Ordinary meanings.
- Unless there is some valid reason for doing otherwise, a contract should be construed according to the ordinary meanings of the words employed therein. Stinchcomb v. Clayton County Water Auth., 177 Ga. App. 558, 340 S.E.2d 217 (1986).
Applying O.C.G.A. § 13-2-2(2) to interpret the plain language of a commercial lease agreement providing that the tenant was responsible for all expenses for the entire property and building of any nature whatsoever, the court of appeals concluded that the tenant's failure to repair the roof constituted default under this provision. NW Parkway, LLC v. Lemser, 309 Ga. App. 172, 709 S.E.2d 858 (2011), cert. denied, No. S11C1289, 2011 Ga. LEXIS 978 (Ga. 2011).
Construction of word "lender".
- In an action arising from the sale of a condominium unit, because there was no issue of material fact as to whether the declaration of condominium's "lender" exception applied to the sale of the unit to the buyer, in giving the word "lender" its usual and common meaning, the trial court erred in concluding that the issue was for the jury. Quality Foods, Inc. v. Smithberg, 288 Ga. App. 47, 653 S.E.2d 486 (2007), cert. denied, No. S08C0437, 2008 Ga. LEXIS 316 (Ga. 2008).
Construction of word "claims".
- In a legal malpractice insurer's declaratory judgment action, letters from the insureds' client's new attorney written before the policy period seeking the client's files did not constitute a demand for money or services and therefore were not "claims" under the policy; issues of fact remained as to the insureds' expectation of the claim. Joseph v. Certain Underwriters at Lloyd's London, Ga. App. , 844 S.E.2d 852 (2020).
Dictionaries may supply plain and ordinary sense of word. Market Place Shopping Ctr. v. Basic Bus. Alternatives, Inc., 213 Ga. App. 722, 445 S.E.2d 824 (1994).
Dictionary definitions of "borrow" and "receive" apply in the interpretation of insurance policies. State Farm Fire & Cas. Co. v. American Hdwe. Mut. Ins. Co., 224 Ga. App. 789, 482 S.E.2d 714 (1997).
Unambiguous terms to be taken in plain, ordinary, and popular sense, as supplied by dictionaries.
- If terms used are clear and unambiguous the terms are to be taken and understood in their plain, ordinary, and popular sense, which is supplied by dictionaries. Henderson v. Henderson, 152 Ga. App. 846, 264 S.E.2d 299 (1979).
In ascertaining intention of parties, words to be given ordinary meaning unless words of art which may have acquired some different connotation. St. Regis Paper Co. v. Aultman, 280 F. Supp. 500 (M.D. Ga. 1967), aff'd, 390 F.2d 878 (5th Cir. 1968).
Transposed or missing words.- Rules of construction permit the court to make corrections when sentences or words are transposed and, in some circumstances, the court can provide missing words. Merchant v. Ultra Grp. of Cos. (In re Al-Karim, Inc.), 529 Bankr. 366 (Bankr. N.D. Ga. 2015).
Words given usual and primary meaning at time of execution.
- Generally, words in contract are to be given their usual and primary meaning at time of execution of contract. Asa G. Candler, Inc. v. Georgia Theater Co., 148 Ga. 188, 96 S.E. 226, 1918F L.R.A. 389 (1918).
When language to be afforded literal meaning and plain ordinary words given usual significance.
- When language used in contract is plain, unambiguous, and capable of only one reasonable interpretation, it must be afforded its literal meaning and plain ordinary words given their usual significance. R.S. Helms, Inc. v. GST Dev. Co., 135 Ga. App. 845, 219 S.E.2d 458 (1975).
Absent contrary indications, word will be given the word's usual and common signification. Undercofler v. Whiteway Neon Ad, Inc., 114 Ga. App. 644, 152 S.E.2d 616 (1966).
Construction of words of art or those connected with particular trade subordinate to parties' intentions.
- Words of art, or words connected with particular trade, are to be given signification attached to them by experts in such art or trade. This rule is one of construction, and, like every such rule is subordinate to the intentions of parties to contract. Asa G. Candler, Inc. v. Georgia Theater Co., 148 Ga. 188, 96 S.E. 226, 1918F L.R.A. 389 (1918).
Intent of parties when ascertained will control technical terms. Carter v. Marble Prods., Inc., 171 Ga. 49, 154 S.E. 891 (1930).
Witness cannot give opinion as to meaning of nontechnical words or phrases.
- Parol evidence is admissible to explain patent ambiguity; but, where words or phrases are not technical, a witness cannot, as expert or otherwise, give the expert's opinion of meaning of instrument. Fillion v. Aetna Cas. & Sur. Co., 150 Ga. App. 619, 258 S.E.2d 222 (1979).
Construction of insurance policy against party preparing policy.
- Words generally bear their usual and common signification; but technical words, or words of art, or used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning. The local usage or understanding of a word may be proved in order to arrive at the meaning intended by the parties. This rule is applicable in interpreting insurance policies and courts use this rule in conjunction with the rule that the policy of insurance like other contracts is construed most strongly against the party who prepares the policy. Johnson v. United States Fid. & Guar. Co., 93 Ga. App. 336, 91 S.E.2d 779 (1956).
Based on construction of an ambiguous term in an insurance policy, summary judgment was properly granted to the claimants, arising from the insurer's denial of coverage, as a negligent repair that resulted in a vehicle accident occurred while the policy was still in effect even though the accident occurred after expiration. Lee v. Universal Underwriters Ins. Co., F.3d (11th Cir. Feb. 11, 2016)(Unpublished).
In a declaratory judgment suit brought by an employer, the grant of summary judgment to an insurance company was affirmed because the pollution exclusion clause to the policy unambiguously excluded coverage for the employee's welder's lung claim. Evanston Ins. Co. v. Sandersville R.R., 761 Fed. Appx. 940 (2019)(Unpublished).
Construction of word "sustain."
- In interpreting an insurance policy, the word "sustain" must be given its usual meaning, and that does not include a connotation of a causation. Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385, 414 S.E.2d 521 (1991), cert. denied, 202 Ga. App. 906, 414 S.E.2d 521 (1992).
Construction of word "corroborate."
- See Langford v. Royal Indem. Co., 208 Ga. App. 128, 430 S.E.2d 98 (1993).
Construction of word "unsecured".
- Ordinary meaning of "unsecured" is that there is no security interest that can be effective against third parties under the Georgia Uniform Commercial Code, specifically O.C.G.A. § 11-9-109. In re Estate of Sims, 259 Ga. App. 786, 578 S.E.2d 498 (2003).
Construction of word "operation."
- While a fire which started on a site occupied by a tenant damaged the owner's property, it did not follow that the tenant's "operation" was the cause of either the fire or the ensuing damage; since there was no evidence that the fire was caused by the tenant's operation at the site, it followed that the tenant was not liable to the owner under a provision of the agreement making the tenant responsible for damages caused by the tenant's operation. Sawtell Ptnrs, LLC v. Visy Recycling, Inc., 277 Ga. App. 563, 627 S.E.2d 58 (2006).
"Officer" in policy did not include law enforcement officer.
- Actions of a Stephens County sheriff's deputy who was detailed exclusively to the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team, which covered three counties, were not covered by policies issued to the other two counties because the deputy was not an insured "member" under the policies because "officer" as used in the policies did not mean a law enforcement officer, and the deputy was not a volunteer. Ayers v. Assoc. of County Comm'rs of Georgia-Interlocal Risk Mgmt. Agency, 332 Ga. App. 230, 771 S.E.2d 743 (2015), cert. denied, No. S15C1289, 2015 Ga. LEXIS 583 (Ga. 2015).
Construction of term "Unit One."
- Term "Unit One" as used in a mutual release between the parties unambiguously referred only to the 71 lots that the builders had already purchased from the owner, and so parol evidence was inadmissible to vary the terms of the release. Stinchcomb v. Wright, 278 Ga. App. 136, 628 S.E.2d 211 (2006).
Construction of "customer" and "purchaser".
- Affording the words "customer" and "purchaser" their "usual and common signification," as required by O.C.G.A. § 13-2-2(2), it was clear that there was no ambiguity as to the debtor on a credit application. Capital Color Printing, Inc. v. Ahern, 291 Ga. App. 101, 661 S.E.2d 578 (2008).
Construction of "last approved cost report".
- On remand in a nursing facility's appeal of the Medicaid reimbursement rate calculated by the Georgia Department of Community Health, the trial court judgment reversing that rate calculation was upheld as the 10-month cost report submitted by the nursing facility was an approved report and should not have been ignored by the department since, in applying the rules of contract interpretation, the phrase "last approved cost report" in the department's manual was ambiguous and nothing in the contract language of the parties' agreement disqualified an unaudited report from use as the last approved cost report. Dep't of Cmty. Health v. Pruitt Corp., 295 Ga. App. 629, 673 S.E.2d 36 (2009).
Because a participation agreement required the originating bank to notify the participating bank when it changed the credit ratings on a construction loan, which included material downgrades in the originating bank's relationship with the borrower, and because the term "downgrades" was not defined in the agreement, this term was viewed in the context of the entire contract which supported a construction of the term according to the contract's plain meaning. Sun Am. Bank v. Fairfield Fin. Servs., F. Supp. 2d (M.D. Ga. Feb. 9, 2010).
Terms of guaranty agreement not ambiguous.
- The terms of the guaranty agreement were not ambiguous in regard to the extent of liability imposed on the individual guarantors since the landlord was aware that the three individual guarantors held unequal shares of ownership in the tenant corporation, the reference to "their respective interest" was unambiguous and was clearly intended to impose liability upon the three in relation to their ownership interest. Tucker Station, Ltd. v. Chalet I, Inc., 203 Ga. App. 383, 417 S.E.2d 40 (1992).
Ineffectiveness in employment contract.
- The trial court is obligated to give "ineffectiveness" in an employment contract its usual, ordinary, and common meaning. Zhou v. LaGrange Acad. Inc., 266 Ga. App. 445, 597 S.E.2d 522 (2004).
Language of business liability policy.
- Under a business liability policy, the parties are presumed to have in contemplation the nature and character of the business, and to have foreseen the usual course and manner of conducting the business. Thus, in construing a policy of insurance so as to arrive at the true intention of the parties, the ordinary legal and literal meaning of the words must be given effect where it is possible to do so without destroying the substantial purpose and effect of the contract. Travelers Indem. Co. v. Nix, 644 F.2d 1130 (5th Cir.), cert. denied, 454 U.S. 932, 102 S. Ct. 430, 70 L. Ed. 2d 239 (1981).
Unambiguous terms of insurance contract taken in plain, ordinary, and popular sense.
- Words used in insurance contracts must be given their usual and ordinary meaning. Nichols v. Ocean Accident & Guarantee Corp., 70 Ga. App. 169, 27 S.E.2d 764 (1943); American Motorists Ins. Co. v. Vermont, 115 Ga. App. 663, 155 S.E.2d 675 (1967).
Contracts of insurance, like other contracts, are to be construed according to sense and meaning of terms which parties have used, and, if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense. Wallace v. Virginia Sur. Co., 80 Ga. App. 50, 55 S.E.2d 259 (1949).
The words used in policies of insurance, as in all other contracts, bear their usual and common significance and policies of insurance are, as all other contracts, to be construed in their ordinary meaning. Pilot Life Ins. Co. v. Morgan, 94 Ga. App. 394, 94 S.E.2d 765 (1956).
Rule generally applicable to construction of insurance contracts is: words employed in contract of insurance are to be taken and understood in their plain, ordinary, usual and popular sense. Continental Cas. Co. v. Robertson, 245 F.2d 604 (5th Cir. 1957).
Policies of insurance are, as all other contracts, to be construed in their ordinary meaning. National Life & Accident Ins. Co. v. Wilson, 106 Ga. App. 504, 127 S.E.2d 306 (1962).
Plain meaning of insurance policy obviously controls. Ranger Ins. Co. v. Culberson, 454 F.2d 857 (5th Cir. 1971), cert. denied, 407 U.S. 916, 92 S. Ct. 2440, 32 L. Ed. 2d 691 (1972).
Words of an insurance contract must be given their usual, ordinary, and common meaning. Bold Corp. v. National Union Fire Ins. Co., 216 Ga. App. 382, 454 S.E.2d 582 (1995).
Terms in insurance contract must be considered in light of surrounding circumstances.- Words used in insurance contracts must be given their usual and ordinary meaning and must be considered in light of surrounding circumstances. Danielson v. Insurance Co. of N. Am., 309 F. Supp. 26 (N.D. Ga. 1969).
Intention of parties to insurance contract as determinative of sense in which terms employed.
- In construing contract of insurance, intention of parties, as in other cases, must be sought for in accordance with the true meaning and spirit in which the agreement was made and expressed in the written instrument, and the ordinary and legal meaning of the words employed must be taken into consideration. Insurance Co. of N. Am. v. Samuels, 31 Ga. App. 258, 120 S.E. 444 (1923).
Insurance policy is contract of indemnity for loss, and intention of parties, if it can be ascertained, must determine sense in which terms employed are used. Intention of parties must be sought for in accordance with true meaning and spirit in which agreement was made and expressed in written instrument, and ordinary and legal meaning of words employed must be taken into consideration. American Cas. Co. v. Fisher, 195 Ga. 136, 23 S.E.2d 395 (1942).
When an insurance policy required inventory to be taken, cost price of articles was sufficient and actual value was not required. Goldman v. Aetna Ins. Co., 162 Ga. 313, 133 S.E. 741, later appeal, 35 Ga. App. 586, 134 S.E. 201 (1926).
Construction on "doing my employment."- Although the district court correctly determined that an invention agreement, on its face, was ambiguous on whether the parties meant for the agreement to have retrospective or prospective effect, the court erred in concluding that the applicable rules of construction resolved the ambiguity and gave the contract retrospective effect by focusing only on one phrase - "during my employment" - and by failing to apply all relevant rules of construction. Georgia-Pacific Corp. v. Lieberam, 959 F.2d 901 (11th Cir. 1992).
Determining liability for excise taxes.
- When there is no written agreement between manufacturer and buyer supplementing the terms of purchase orders in regard to federal excise taxes and there has been no prior course of dealing between these parties, no construction of the contract can be drawn through the custom and usage of the trade or prior business dealings regarding liability for the taxes. Chatham v. Southern Ry., 157 Ga. App. 831, 278 S.E.2d 717 (1981).
Exceptions, limitations, and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms. Alley v. Great Am. Ins. Co., 160 Ga. App. 597, 287 S.E.2d 613 (1981).
Construction of word "about".
- See Brawley v. United States, 96 U.S. 168, 24 L. Ed. 622 (1878); Bass Dry Goods Co. v. Granite City Mfg. Co., 113 Ga. 1142, 39 S.E. 471 (1901).
Construction of word "immediately".- "Immediately" has been construed in many cases to mean within reasonable diligence and within a reasonable length of time in view of attending circumstances of each particular case. Dwoskin v. Rollins, Inc., 634 F.2d 285 (5th Cir. 1981).
Construction of word "presently".- The word "presently" or its synonyms should be given a reasonable and substantial construction, in view of thing to be done, and not to be considered as equivalent to instanter. Dwoskin v. Rollins, Inc., 634 F.2d 285 (5th Cir. 1981).
Construction of word "building".
- The term "building" in an insurance contract did not include a culvert. Arkin v. Fireman's Fund Ins. Co., 228 Ga. App. 564, 492 S.E.2d 314 (1997).
Construction of anchor store in mall.
- Free-standing warehouse-type store erected adjacent to a mall was not a replacement for an "anchor" store, as defined in the lease, that had vacated the store's premises in the mall. Therefore, a mall tenant was entitled to pay reduced rent according to the terms of the lease. Rainbow United States, Inc. v. Cumberland Mall, LLC, 301 Ga. App. 642, 688 S.E.2d 631 (2009).
Construction of term "fixtures" in lease.
- Trial court did not err in charging the jury that the jury's duties included construing provisions of the lease governing fixtures because a genuine issue of fact existed as to what that term referred to since the lease was ambiguous as a result of referring to fixtures in one provision and referring to trade fixtures in another. Goody Prods. v. Dev. Auth. of Manchester, 320 Ga. App. 530, 740 S.E.2d 261 (2013).
Construction of word "due".
- Where an employment agreement did not specifically define what was meant by the word "due," as such term was used in determining what compensation the employee was entitled to through the effective date of the employee's termination, summary judgment on the employee's breach of contract claim regarding what amount of compensation the employee was to receive, was erroneously entered. Reichman v. Southern Ear, Nose & Throat Surgeons, P.C., 266 Ga. App. 696, 598 S.E.2d 12 (2004).
Construction of word "payment".
- Under O.C.G.A. § 13-2-2, words in contracts, such as residential leases, are given their common definition, and payment is defined as the fulfillment of a promise, or the performance of an agreement; in a more restricted legal sense payment is the performance of a duty, promise, or obligation, or discharge of a debt or liability, by the delivery of money or other value by a debtor to a creditor, where the money or other valuable thing is tendered and accepted as extinguishing a debt or obligation in whole or in part. Baker v. Hous. Auth. of Waynesboro, 268 Ga. App. 122, 601 S.E.2d 350 (2004).
Construction of word "introduce."
- In construing a contract, words are given their common meaning, pursuant to O.C.G.A. § 13-2-2. "Introduce" means "to present to the public for the first time," "to bring forward for consideration," or "to provide someone with a beginning knowledge or first experience of something"; thus, an introduction does not require a great deal of action. Snipes v. Marcene P. Powell & Assocs., 273 Ga. App. 814, 616 S.E.2d 152 (2005).
Because under O.C.G.A. § 13-2-2, contract words are given their exact meaning, the word "introduced," as used in a real estate commission extension clause, did not require that a broker be the predominant or procuring cause of the sale; rather, it required only that the broker's actions have at least some minimal causal connection with the sale, or be in the chain of causation leading to the sale. Snipes v. Marcene P. Powell & Assocs., 273 Ga. App. 814, 616 S.E.2d 152 (2005).
According to usual signification of the word, an automobile is not a motorcycle. Both are motor-driven vehicles, but not all motor-driven vehicles are automobiles, nor are all motorcycles. Bullard v. Life & Cas. Ins. Co., 178 Ga. 673, 173 S.E. 855, answer conformed to, 49 Ga. App. 27, 174 S.E. 256 (1934).
Term bodily injury not ambiguous, as it is term needing no explanation. Cotton States Mut. Ins. Co. v. Crosby, 244 Ga. 456, 260 S.E.2d 860 (1979).
Assumption that "either" was intended in technically accurate sense, not as meaning "both".
- Although use of "either" to mean "both" is recognized in dictionaries and fairly common in the vernacular, this is not a technically accurate usage which would normally or correctly be employed in a legal document. The court will not assume that the less accurate usage of "either" was intended, but rather that usage which is distinctive and unique to the word. Holcomb v. Word, 239 Ga. 847, 238 S.E.2d 915 (1977).
Construction of word "fit."
- For construction of the word "fit" in a lease providing that "Lessors represent that the premises are in fit condition for use by the Lessees," see McDuffie v. Argroves, 230 Ga. App. 723, 497 S.E.2d 5 (1998).
Phrase "local taxes," as used in contracts which excluded local taxes from the lump sum purchase price for advertising signs, did not include state sales taxes, where the phrase was at best an ambiguous phrase, admitting of no single, reasonable meaning, without resort to construction. Outdoor Displays Welding & Fabrication, Inc. v. United States Enters., Inc., 84 Bankr. 260 (Bankr. S.D. Ga. 1988).
If telegram constitutes contract, testimony as to meaning of cipher code words admissible.
- If contract consummated by letter or telegram, testimony as to meaning of cipher code words in telegram is admissible. Allen, McIntosh & Co. v. Farmers & Traders Nat'l Bank, 129 Ga. 748, 59 S.E. 813 (1907).
Meaning of "United States standard lint cotton" in ambiguous contract, subject to parol explanation.
- Meaning of term "United States standard lint cotton" in ambiguous contract is subject to explanation by parol testimony. Mays v. Hankinson & Hagler, 31 Ga. App. 473, 120 S.E. 793 (1923).
Meaning of words "in the Savannah market" subject to parol explanation.
- Meaning of words, "in the Savannah market," being in dispute, and ambiguous, it was right to admit parol evidence to explain their true sense as originally used in Savannah. Goodman v. Henderson, 58 Ga. 567 (1877).
Tax rebate funds included within "all funds . . ." provision of contract. See Cowen v. Snellgrove, 169 Ga. App. 271, 312 S.E.2d 623 (1983).
Promise to pay interest "per annum" is simply a promise to pay at an annual interest rate. This does not obligate the lender to use any particular method of interest computation; nor does it restrict the amount of interest that can be charged to the amount that accrues when interest is calculated daily for 365 days. Kleiner v. First Nat'l Bank, 581 F. Supp. 955 (N.D. Ga. 1984).
Term "sidetrack agreements," although not fully explained in an insurance policy, clearly referred to railroads. Auto-Owners Ins. Co. v. Barnes, 188 Ga. App. 439, 373 S.E.2d 217, cert. denied, 188 Ga. App. 911, 373 S.E.2d 217 (1988).
Construction of "and all renewals thereof" in insurance policy.
- Within a viatical settlement agreement between an assigned beneficiary and the insured, the phrase in the assignment "and all renewals thereof" entitling the beneficiary to the insured's group life insurance proceeds and proceeds from renewal policies, did not apply to a subsequent replacement policy the insured obtained as that language clearly expressed the insured's intent and was not ambiguous. Livoti v. Aycock, 263 Ga. App. 897, 590 S.E.2d 159 (2003).
Words "notwithstanding" and "such as" in lease agreement given plain meaning.
- A trial court erred in construing a lease amendment to require the tenant to pay additional monthly fees for utilities, because the unambiguous language of the amendment provided for payment of a minimum annual rent plus a percentage of annual gross sales and no other rent charges, notwithstanding the provisions of the original lease. The word "notwithstanding" meant that the terms of the amendment applied in spite of any language in the original lease to the contrary, and the words "such as" late charges did not include utility charges, which were dissimilar to late charges. Record Town, Inc. v. Sugarloaf Mills L.P., 301 Ga. App. 367, 687 S.E.2d 640 (2009).
Construction of restrictive covenants.
- Because a driveway was a "structure" within the common meaning of that term as well as the meaning of the restrictive covenants, pursuant to O.C.G.A. §§ 13-2-2(2) and13-2-3, the trial court did not err in finding as a matter of law that a homeowner was required to seek the homeowner association's approval before resurfacing a driveway; consequently, the trial court properly granted the homeowner association's motion for an injunction requiring the homeowner to restore the driveway to the driveway's original condition. Mitchell v. Cambridge Prop. Owners Ass'n, 276 Ga. App. 326, 623 S.E.2d 511 (2005).
Partial summary judgment for two owners was affirmed as "structure" was not defined in the restrictive covenants, so there was an ambiguity; using the rules of construction set forth in O.C.G.A. § 13-2-2, the restrictive covenants were construed as a whole. Under the restrictive covenants, a retaining wall was not prohibited within a setback line as: (1) "structure" had various meanings in various contexts; (2) "structure" was used in a limited sense to refer to a house, building, dwelling, or any above-ground or "erected" shelters for people or property; (3) when other improvements to land were addressed such as septic systems, sewage lines, wells, above-ground fuel and water tanks, and construction materials, they were discussed separately and only by their specific names; and (4) given the context, "structure" was not intended to have a broader meaning. Skylake Prop. Owners Ass'n v. Powell, 281 Ga. App. 715, 637 S.E.2d 51 (2006).
Trial court properly issued a permanent injunction against a homeowner based on that homeowner's violation of a restrictive covenant by erecting a shed on the subject property because: (1) the shed was not constructed with the same material and color as the exterior of residence; (2) the structure clearly violated the covenant; and (3) enforcement of the covenant had not been waived. Glisson v. IRHA of Loganville, Inc., 289 Ga. App. 311, 656 S.E.2d 924 (2008).
Paragraph (5) of O.C.G.A.
§ 13-2-2 applied to include insurance coverage for sexual abuse. - Construing the ambiguity of a sexual abuse exclusion provision in an insurance policy against an insurer, the policy was held not to exclude coverage for sexual abuse perpetrated by some children residents of defendant's shelter facility, such that the trial court erred in granting summary judgment for insurer and in denying summary judgment for defendant on the issues of coverage under the insurance policy. Georgia Baptist Children's Homes & Family Ministries, Inc. v. Essex Ins. Co., 207 Ga. App. 346, 427 S.E.2d 798, cert. denied, 263 Ga. 441, 435 S.E.2d 445 (1993).
Construction of total disability.
- After determining that the definition of the term "total disability" in two of an insurer's disability policies was ambiguous where the term stated only that an insured was totally disabled if the insured was unable to perform the major duties of the insured's occupation, in accordance with the directive in O.C.G.A. § 13-2-2(2) to give words their ordinary and common meanings, the terms "duties" and "major" were construed to mean at least two duties that were greater in importance than other duties. Thus, the insured was not required to show that the insured was unable to perform all of the major duties of the insured's occupation to qualify as being totally disabled. Putnal v. Guardian Life Ins. Co. of Am., F. Supp. 2d (M.D. Ga. Sept. 29, 2006).
Terms "provision of lithotripsy services".
- Where a doctor, a minority shareholder in a corporation that ultimately had an interest in a partnership that operated to rent a lithotriptor to hospitals, executed a noncompete agreement as to the partnership business incident to one partner's sale of its partnership interest, it was not necessary to consider parol evidence to adduce the meaning of the term "provision of lithotripsy services" for purposes of the noncompete agreement under O.C.G.A. § 13-2-2(1) because the contractual language was not ambiguous in the context of the dispute as to whether the doctor breached such agreement. West Coast Cambridge, Inc. v. Rice, 262 Ga. App. 106, 584 S.E.2d 696 (2003).
Construction of "in-patient" and "out-patient".
- Given that the language in an insurance contract providing for catastrophic coverage only extended to inpatient, and not outpatient services, the trial court properly granted summary judgment as to the issue of the insurer's coverage, as the hospital bill for which the insured sought payment was for outpatient services. Michna v. Blue Cross & Blue Shield of Ga., Inc., 288 Ga. App. 112, 653 S.E.2d 377 (2007), cert. denied, 2008 Ga. LEXIS 214 (Ga. 2008).
Solicitation of offer.- Solicitation and receipt of an offer to purchase is not a legally enforceable offer to sell. Stephens v. Trust for Pub. Land, 479 F. Supp. 2d 1341 (N.D. Ga. 2007).
"Limited warranty".
- Under O.C.G.A. § 13-2-2(7), preprinted "limited warranty" language on the back of a confirmation had no effect because that language directly contradicted the full warranty language that was typed on the front of the preprinted confirmation form; the court erred when the court relied on this warranty to bar a claim for lost profits or other special damages. Authentic Architectural Millworks, Inc. v. SCM Group USA, Inc., 262 Ga. App. 826, 586 S.E.2d 726 (2003).
"Trade fixture."
- Trial court's finding that a lease permitted a lessee to remove a canopy that was installed for purposes of carrying on the lessee's trade at the leased premises, was proper under O.C.G.A. § 13-2-2(4) because the trial court's application of the traditional meaning of the term "trade fixture" was consistent with sections of the lease providing that the lessee was required to surrender all buildings, structures, and improvements and that the lessee was permitted to demolish all improvements and to construct new buildings in place of the demolished ones. Lay Bros., Inc. v. Golden Pantry Food Stores, Inc., 273 Ga. App. 870, 616 S.E.2d 160 (2005).
Construction of "all participants".
- In a breach of contract action, the appellate court erred in concluding that a worker killed at a city airport construction site was an intended beneficiary of all of the contracts between the city and the contractors as the court did not properly consider the definition of the term "all participants" and did not consider the parties' contractual obligations separately. Archer W. Contrs., Ltd. v. Estate of Estate of Pitts, 292 Ga. 219, 735 S.E.2d 772 (2012).
Reference to Federal Arbitration Act not surplusage.
- In a suit brought by a worker against an employer after the worker incurred severe injuries when co-workers placed an illegal substance in a drink, the trial court erred when the court determined that the choice-of-law provision in the arbitration agreement did not require application of the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., because reference to the FAA was not surplusage and required enforcement. Waffle House, Inc. v. Pavesi, 343 Ga. App. 102, 806 S.E.2d 204 (2017).
Custom and Usage of Trade
Code embodies substance of common law as to custom. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955).
Valid usages impliedly part of contract unless not within intent of parties.
- General rule is that valid usages concerning subject matter of contract of which parties are chargeable with knowledge are by implication incorporated therein, if contract is subject to interpretation urged and if nothing within it excludes such interpretation as having been within intention of parties. General Forms, Inc. v. Continental Cas. Co., 123 Ga. App. 52, 179 S.E.2d 522 (1970).
Ambiguity resolved by custom.
- In face of ambiguity of documents comprising agreement of parties, the obligation to pay extra for extra work was of such compelling logic and was of such usual custom in the trade as to be necessarily implied in the contract. Colonial Pipeline Co. v. Robert W. Hunt Co., 164 Ga. App. 91, 296 S.E.2d 633 (1982).
Custom may become part of contract by implication notwithstanding integration clause.
- Where custom by implication becomes part of contract and does not constitute a parol agreement or undertaking between parties it may be established as part of contract, notwithstanding provision in contract that it contains all conditions and agreements, either oral or written, between parties. Weems v. Des Portes, 47 Ga. App. 546, 171 S.E. 182 (1933).
Custom of trade may be shown notwithstanding provision in contract that all conditions and agreements between parties thereto, either oral or written, are contained in contract. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955).
Trade usage and custom may be explained by parol proof.
- Ambiguities in terms used in written contracts, and their meanings as understood in trade and by contracting parties, may be explained by parol proof of this trade usage and custom. Pace Constr. Corp. v. Houdaille-Duvall-Wright Div., 247 Ga. 367, 276 S.E.2d 568 (1981); Bemco Mattress Co. v. Southeast Bedding Co., 196 Ga. App. 509, 396 S.E.2d 238 (1990).
Absence of a definition for "patio home" or "cluster home" in a subdivision's restrictive covenants created an ambiguity for resolution by the application of the rules of contract construction; parol evidence was properly considered that patio home and cluster home were words used in the trade and did not include town homes or condominiums. Southland Dev. Corp. v. Battle, 272 Ga. App. 211, 612 S.E.2d 12 (2005).
Office of custom or usage is to interpret otherwise indeterminate intentions of parties. Citizens & S. Bank v. Union Whse. & Compress Co., 157 Ga. 434, 122 S.E. 327 (1924); American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150 (1938).
Office of custom or usage in trade is not to contradict contract, but to explain what would otherwise be inexplicable in meaning and intention of parties, on theory that the parties knew of its existence and contracted with reference to it. Burns Brick Co. v. Adams, 106 Ga. App. 416, 127 S.E.2d 26 (1962).
Industry practice cannot be imposed upon unambiguous written terms of contract.
- In a suit alleging breach of contract and civil conspiracy brought against insurance company, plaintiffs could not with parol evidence impose upon the unambiguous written terms of the contract, which did not require 30 days' advance notice of termination, an alleged industry practice of such notice. Wood v. All Am. Assurance Co., 172 Ga. App. 655, 324 S.E.2d 483 (1984).
If there is no contract, custom or usage of trade will not make one.
- Custom of trade may under certain conditions become by implication part of contract; and also evidence of known and established usage is admissible to aid in construction of contract, as well as to annex incidents. But these provisions by their very terms presuppose existence of contract, and where there is no contract, proof of usage will not make one. Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 167 S.E. 79 (1932).
Usage and custom of trade binding if known, certain, uniform, reasonable, and not contrary to law. Citizens & S. Bank v. Union Whse. & Compress Co., 157 Ga. 434, 122 S.E. 327 (1924); American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150 (1938).
Alleged usage which leaves some material element to discretion of individual is void for uncertainty; such usage would be void because useless. Citizens & S. Bank v. Union Whse. & Compress Co., 157 Ga. 434, 122 S.E. 327 (1924); American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150 (1938).
Loose, variable, or discretionary practice does not arise to dignity of custom so as to control rights of parties to contract. American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150 (1938).
Individual habits of dealing do not make universal custom which by implication enters into contract and forms part thereof. Petkas v. Wright Co., 87 Ga. App. 189, 73 S.E.2d 224 (1952).
Custom may not be invoked when it contravenes declared law. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955).
Custom has no application to nonresidents, as nonresidents could not reasonably be charged with knowledge of custom prevailing in this state. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955).
In interpreting usage or custom, same rules apply as pertain to construction of other writings and documents. Citizens & S. Bank v. Union Whse. & Compress Co., 157 Ga. 434, 122 S.E. 327 (1924).
Paragraph (3) of O.C.G.A.
§ 13-2-2 is rule for construction of contracts, not for determining tort liability. - Statute is rule for construction of contracts, not for determining liability in tort actions. Wright v. Concrete Co., 107 Ga. App. 190, 129 S.E.2d 351 (1962).
Statute, which sanctions reliance on custom of trade or business universally practiced, is rule for construction of contracts, not for determining liability in tort actions. Smith v. Godfrey, 155 Ga. App. 113, 270 S.E.2d 322 (1980).
Custom may be established if not conflicting or inconsistent with written contract.
- Rule that custom of business or trade may be binding upon parties to contract when it is of such universal practice as to justify conclusion that it became by implication part of contract, cannot make custom part of contract where alleged custom is inconsistent with expressed provisions of agreement. Shellnut v. Federal Life Ins. Co., 41 Ga. App. 386, 153 S.E. 102 (1930); Penn Mut. Life Ins. Co. v. Blount, 41 Ga. App. 581, 153 S.E. 794 (1930).
Custom may be established as part of written contract where not in conflict or inconsistent with any provisions of it. Weems v. Des Portes, 47 Ga. App. 546, 171 S.E. 182 (1933).
Custom cannot be used to contradict express terms of contract itself and where language of contract does not exclude by its terms operation of proven universal custom, but is silent on question, custom becomes part of contract. Shippen v. Folsom, 200 Ga. 58, 35 S.E.2d 915 (1945).
Custom pleaded by defendant which was inconsistent with and repugnant to express terms of unambiguous contract could not be urged for purpose which would have altered the contract's provisions. Church v. Trailmobile, Inc., 99 Ga. App. 750, 109 S.E.2d 636 (1959).
Custom may not be shown to be a part of an unambiguous contract when it is inconsistent with or contrary to express or necessarily implied terms of contract. Burns Brick Co. v. Adams, 106 Ga. App. 416, 127 S.E.2d 26 (1962).
Contention that insurance contract consisted of application, medical report illustrating applicant's insurability, payment of first month's premium, plus alleged custom of interim coverage, was at variance with stated law of this state, as application contained stipulation that insurance applied for would not take effect until issued and delivered as custom or usage cannot be set up to vary written unambiguous provisions of contract, terms of which are at variance with alleged custom. Peninsular Life Ins. Co. v. Downard, 99 Ga. App. 509, 109 S.E.2d 279 (1959).
General rule is that valid usages concerning subject matter of contract of which parties are chargeable with knowledge are by implication incorporated therein, if contract is subject to interpretation urged and if nothing within it excludes such interpretation as having been within intention of parties. Puritan Mills, Inc. v. Pickering Constr. Co., 152 Ga. App. 309, 262 S.E.2d 586 (1979).
Alleged custom inconsistent with express terms of unambiguous contract was not controlling.
- Custom pleaded by defendant which was inconsistent with and repugnant to express terms of unambiguous contract could not be urged for purpose which would have altered the contract's provisions. Church v. Trailmobile, Inc., 99 Ga. App. 750, 109 S.E.2d 636 (1959).
Admissibility of trade custom as to terms susceptible of more than one understanding.
- While trade custom cannot be used to contradict express contract term, if there is possibility of understanding a term in more than one sense, parol evidence is admissible to show that parties contracted with intention that custom of trade as to such term should apply to their contract. General Forms, Inc. v. Continental Cas. Co., 123 Ga. App. 52, 179 S.E.2d 522 (1970).
Custom or usage of trade inadmissible to contradict terms of written and unambiguous contract. Hubert v. Luden's, Inc., 92 Ga. App. 427, 88 S.E.2d 481 (1955).
If intent and meaning of parties are clear, evidence of usage to contrary is irrelevant and unavailing. Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 167 S.E. 79 (1932).
Admissibility of established usage to annex incidents.
- Evidence of known and established usage is admissible to aid in construction of contracts as well as to annex incidents. Puritan Mills, Inc. v. Pickering Constr. Co., 152 Ga. App. 309, 262 S.E.2d 586 (1979).
Custom can only be proved by word of mouth from those engaged in the business, and evidence thereof is necessarily in parol. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955).
Qualified experts in a trade or industry may testify as to its customs and usages and as to meaning of words used in trade between persons dealing therein. Taber Mill v. Southern Brighton Mills, 49 Ga. App. 390, 175 S.E. 665 (1934).
Statutory requisite as to content of insurance contract, not subject to obliteration by custom.
- While insurance companies are bound to know customs of places where they transact business, and are assumed to have made their contracts with reference thereto and, while custom of any business or trade is binding between contracting parties when it is of such universal practice as to justify conclusion that it became by implication part of contract, statutory requisite that contracts of insurance be in a writing or writings, setting forth all material elements of a contract of insurance before such contract is enforcible, may not be obliterated by custom. Peninsular Life Ins. Co. v. Downard, 99 Ga. App. 509, 109 S.E.2d 279 (1959).
When contract silent regarding weight of cotton bales, evidence of trade meaning of term admissible. J. T. Stewart & Son v. Cook, 118 Ga. 541, 45 S.E. 398 (1903).
Cotton trade custom that bales should average "around" certain amount, not void for uncertainty.
- Custom in cotton trade that bales of cotton should average "around" or "about" or "in the neighborhood of 500 pounds per bale" is not void for uncertainty. Citizens & S. Bank v. Union Whse. & Compress Co., 157 Ga. 434, 122 S.E. 327 (1924).
Construction of words "timber suitable for turpentine purposes" as to size of timber intended.
- Words "timber suitable for turpentine purposes," as used in timber lease are not ambiguous and mean any timber of whatever size that is ordinarily used for turpentine purposes; size being determined by custom, if one is shown to be applicable. The same thing may be expressed in different words, with respect to size, by defining phrase as meaning timber of any size that may consistently with ordinary prudence be used for such purposes; this being in law the true criterion, whether shown by proof of custom or other proof. Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783 (1947).
Construction of "square feet."
- Trial court properly refused to direct a verdict for a seller in a breach of contract claim, alleging that a developer and the companies failed to abide by restrictions in the contract between the parties requiring that homes built by the developer be no larger than a certain amount of square feet; parol evidence that the term "square feet" was commonly used and understood in the real estate industry to refer to heated square feet was properly admitted under O.C.G.A. § 13-2-2(2) as an explanation of trade usage and custom and showed that the homes in question were within the square footage limitation in the contract. Brock v. King, 279 Ga. App. 335, 629 S.E.2d 829 (2006), aff'd, 282 Ga. 56, 646 S.E.2d 206 (2007).
Construction of "downgrades".- Because a participation agreement required the originating bank to notify the participating bank when it changed the credit ratings on a construction loan, which included material downgrades in the originating bank's relationship with the borrower, and because the term "downgrades" was not defined in the agreement, the plain meaning of the term, as used in the banking industry, required the originating bank to advise the participating bank of its risk rating changes for the borrower. Sun Am. Bank v. Fairfield Fin. Servs., F. Supp. 2d (M.D. Ga. Feb. 9, 2010).
Instruction on section improper without evidence.
- Trial court errs in charging the provisions of paragraph (3) of O.C.G.A. § 13-2-2, regarding the effect of certain business or trade customs upon contractual obligations, if there is no evidence of any such custom or practice in the case. Amax, Inc. v. Fletcher, 166 Ga. App. 789, 305 S.E.2d 601 (1983) (holding error harmless).
Preference for Upholding ContractsContract as a whole to be considered in determining construction to be given any part. Continental Cas. Co. v. Continental Rent-A-Car of Ga., Inc., 349 F. Supp. 666 (N.D. Ga.), aff'd, 468 F.2d 950 (5th Cir. 1972).
If the construction of any part of contract is doubtful, understanding of the contract's meaning is to be sought in light afforded by meaning of all other parts of instrument. Even if one part of contract is somewhat repugnant to remaining portions, true meaning of contract as whole is to be ascertained and enforced. Federal Rubber Co. v. King, 12 Ga. App. 261, 76 S.E. 1083 (1913).
Construction upholds the plain language of the parties' agreement.
- Based on construction rules under O.C.G.A. § 13-2-2(1) and (4), parties' settlement agreement regarding disputed title to waterfront property required adjoining property owners to make a payment, which was conditioned on the obtaining of necessary permits; in the event the permit contingency failed, the payment was to be returned. Allen v. Sea Gardens Seafood, Inc., 290 Ga. 715, 723 S.E.2d 669 (2012).
Lease agreement barring removal of improvements.
- Pursuant to O.C.G.A. § 13-2-2-(4), the court of appeals was bound to uphold a provision of a lease agreement between the parties barring the removal of certain improvements to the leasehold by the lessee originally installed by the lessor's predecessor in interest, despite a request by the lessor that it be removed, without affirmative facts showing that the improvements were not likely to be usable by a successor tenant, and the lessor failed to meet the lessor's burden of showing that the improvements were not likely to be used in the future. Ranwal Props., LLC v. John H. Harland Co., 285 Ga. App. 532, 646 S.E.2d 730 (2007).
Rendering portion meaningless avoided.
- A court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless. Board of Regents v. A.B. & E., Inc., 182 Ga. App. 671, 357 S.E.2d 100 (1987).
Contracts are to be construed so as to uphold and give effect to the agreement as lawful and not to render portions of the agreement meaningless; to construe the settlement agreement and promissory note as assigning an executor's commission would have risked making the settlement agreement void ab initio under O.C.G.A. § 44-12-24, and the ambiguity was resolved by holding that the executor did not waive the executor's right to a commission. In re Estate of Sims, 259 Ga. App. 786, 578 S.E.2d 498 (2003).
Trial court erred in holding a spouse in contempt of court and ordering the spouse to pay a tax lien on marital property from the spouse's proceeds from the sale of the property as the evidence did not show that the spouse willfully violated the divorce judgment, which evidenced an intent to share the burden equally. Therefore, requiring the spouse to bear the entire burden of the tax lien rendered certain provisions of the divorce agreement meaningless. Knott v. Knott, 277 Ga. 380, 589 S.E.2d 99 (2003).
Because a lienholder signed a subordination agreement that expressly stated that it subordinated a certain security deed held by the lienholder to the interests of another, the rules of contract construction in O.C.G.A. § 13-2-2(4) required that "or otherwise" language in the agreement be given effect, so another security deed the lienholder held regarding the same property was also subject to the subordination agreement, even though it was not specifically mentioned in the agreement. VATACS Group, Inc. v. HomeSide Lending, Inc., 276 Ga. App. 386, 623 S.E.2d 534 (2005).
Where an insurance company sought contribution from a power line construction company, the insurance company's reading of the contract between the construction company and the insured, a power company, was contrary to O.C.G.A. § 13-2-2(4) that a contract should be construed, if possible, so as not to render any of its provisions meaningless. Under the terms of the contract that governed the construction of the power line that killed the deceased, the construction company's liability terminated when possession and control of the line were turned over to the power company. Federated Rural Elec. Ins. Exch. v. R.D. Moody & Assocs., F.3d (11th Cir. June 27, 2008)(Unpublished).
In event of conflict between contract provisions, first provision prevails. Wilner's, Inc. v. Fine, 153 Ga. App. 591, 266 S.E.2d 278 (1980).
Interpretation of conflicting clauses.
- If two clauses be utterly inconsistent, former must prevail, but intentions of parties from whole instrument should, if possible, be ascertained and carried into effect. The doctrine of repugnant clauses is not favored. Maxwell v. Hoppie, 70 Ga. 152 (1883).
Where two clauses are so repugnant that they cannot stand together, the first will be retained and the second rejected, unless inconsistency is so great as to void instrument for uncertainty. Drake v. Wayne, 52 Ga. App. 654, 184 S.E. 339 (1936).
If two clauses of contract are so totally repugnant to each other that the clauses cannot stand together, first shall be received and latter rejected. Waxelbaum v. Carroll, 58 Ga. App. 771, 199 S.E. 858 (1938).
Meaning to be given to all manifestations of intention by parties.
- The law requires that in interpreting a contract, the court gives a reasonable, lawful, and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect. Whitmire v. Colwell, 159 Ga. App. 682, 285 S.E.2d 28 (1981).
Contract to be construed as whole and no part discarded if avoidable.
- It is well settled and salutary rule of construction which requires not only that every contract shall be construed in pari materia, but that no portion shall be discarded if it can be avoided. Candler Inv. Co. v. Cox, 4 Ga. App. 763, 62 S.E. 479 (1908).
In determining the ownership of certain intellectual property developed by a claimant while in a debtor's employ, pursuant to the applicable rules of contract construction under O.C.G.A. § 13-2-2, a nondisclosure agreement executed by the claimant as a condition of employment rendered ownership of any development to the debtor; the fact that the debtor failed to pay part of the claimant's salary did not render the assignment clause unenforceable because the contract did not provide for rescission and the claimant had an adequate remedy at law for the unpaid salary. Ponder v. Apyron Techs., Inc. (In re Apyron Techs., Inc.), Bankr. (Bankr. N.D. Ga. Mar. 17, 2005).
All terms of contract, as far as practicable, must be given full effect. Wellborn v. Estes, 70 Ga. 390 (1883); Myers v. Phillip Carey Co., 17 Ga. App. 535, 87 S.E. 825 (1916).
When terms of contract permit the contract should be given construction which will advance the contract's beneficial purpose. MacDougald Constr. Co. v. State Hwy. Dep't, 59 Ga. App. 708, 2 S.E.2d 197, rev'd on other grounds, 189 Ga. 490, 6 S.E.2d 570 (1939); Consolidated Freightways Corp. v. Williams, 139 Ga. App. 302, 228 S.E.2d 230 (1976).
Law leans against destruction of contracts on ground of uncertainty, and contract will not be declared void on that ground, unless after reading the contract and interpreting the contract in light of circumstances under which the contract was made, and supplying or rejecting words necessary to carry into effect reasonable intention of the parties, their intention cannot be fairly collected and effectuated. Leffler Co. v. Dickerson, 1 Ga. App. 63, 57 S.E. 911 (1907).
If possible, courts construe contracts as binding upon both parties.
- When possible without contravening any rule of law, courts will construe contract as binding on both parties, where, from language of contract, conduct of parties, and all attendant circumstances, it appears that intention of the parties was that both should be bound by sale, and substantial justice requires that contract be given effect. Good Rds. Mach. Co. v. Neal & Son, 21 Ga. App. 160, 93 S.E. 1018 (1917).
Contracts to be construed, if possible, to incur lawful obligations.
- It is not to be presumed that people intend to violate the law, and language of their undertakings must, if possible, be so construed as to make obligation one which law would recognize as valid. Lie-Nielsen v. Tuxedo Plumbing & Heating Co., 149 Ga. App. 502, 254 S.E.2d 729 (1979), rev'd on other grounds, 245 Ga. 27, 262 S.E.2d 794 (1980).
If there is doubt as to whether purpose contract seeks to effectuate is legal or illegal, it will be construed as made for legal, rather than illegal purpose. Virginia Bridge Iron Co. v. Crafts, 2 Ga. App. 126, 58 S.E. 322 (1907); Potts v. Riddle, 5 Ga. App. 378, 63 S.E. 253 (1908); Luke v. Livingston, 9 Ga. App. 116, 70 S.E. 596 (1911); Palmer Brick Co. v. Woodward, 138 Ga. 289, 75 S.E. 480 (1912).
Forfeitures not favored in the law, and where there is legitimately a choice of constructions, that which will save contract is rather to be preferred than that which will work forfeiture. Aetna Ins. Co. v. Lipsitz, 130 Ga. 170, 60 S.E. 531 (1908).
Ambiguous agreement capable of interpretation which will validate the agreement will be so interpreted. Moore v. Hughey, 133 Ga. App. 901, 212 S.E.2d 503 (1975).
Instrument construable as valid deed of gift or invalid testamentary disposition, construed as former.
- Instrument, in form of a deed of gift, and will attested as such, but not legally attested as a will, so that it will wholly fail of effect if construed to be testamentary in its character, should, if very doubtful in its terms with reference to the time of vesting estate, be classed as deed and not as will. Dismukes v. Parrott, 56 Ga. 513 (1876).
Court will not give validating construction to instrument which would require changing maturity date completely.
- Courts will not apply construction to loan contract to give effect to interpretation that would validate instrument rather than void the contract if such interpretation would require court to change maturity date in month, day, and year. Sellers v. Alco Fin., Inc., 130 Ga. App. 769, 204 S.E.2d 478 (1974).
Title cannot be used to explain or vary unambiguous language in body of contract.
- A title, not being in truth part of article, cannot be used to throw light on or to vary unambiguous language of body of contract. Suggs v. Brotherhood of Locomotive Firemen & Enginemen, 106 Ga. App. 563, 127 S.E.2d 827 (1962).
Contract generally not construed as giving debtor right to destroy it simply by refusing compliance.
- Law will not construe contract to give the debtor the right to destroy it by simple refusal to comply with it, unless terms of contract are so clear and unambiguous as to make irresistible the conclusion that no other result could possibly be reached, and that such was intention of parties. Finlay v. Ludden & Bates S. Music House, 105 Ga. 264, 31 S.E. 180 (1898); Milledgeville Cotton Co. v. Cary, 9 Ga. App. 391, 71 S.E. 503 (1911); Haag v. Rogers, 9 Ga. App. 650, 72 S.E. 46 (1911).
Construing contract as whole, lender afforded status of mortgagee, not merely loss payee.- See Business Dev. Corp. v. Hartford Fire Ins. Co., 747 F.2d 628 (11th Cir. 1984).
Probate court improperly modified settlement agreement.
- Probate court erred in ruling on how the estate assets should be distributed among the parties by improperly modifying the terms of the settlement agreement because the unambiguous terms of the settlement agreement required an accountant to complete certain determinations before the equalization of the estate assets could be calculated, and it was undisputed that the accountant had not yet completed those determinations. In re Estate of Hubert, 325 Ga. App. 276, 750 S.E.2d 511 (2013).
Construction Against Party Executing Instrument
Construction of contract is generally to be most strongly against party undertaking obligation. Shiflett v. Anchor Rome Mills, Inc., 78 Ga. App. 428, 50 S.E.2d 853 (1948).
Construction against party with obligation.
- If construction of contract is doubtful, that which goes most strongly against party executing instrument or undertaking obligation is generally to be preferred. Finlay v. Ludden & Bates S. Music House, 105 Ga. 264, 31 S.E. 180 (1898); Small Co. v. Claxton, 1 Ga. App. 83, 57 S.E. 977 (1907); Candler Inv. Co. v. Cox, 4 Ga. App. 763, 62 S.E. 479 (1908); Dewey v. Denson, 31 Ga. App. 352, 120 S.E. 805 (1923); Bridges v. Home Guano Co., 33 Ga. App. 305, 125 S.E. 872 (1924).
When construction necessary, contract to be construed most strongly against party who formulated the contract. Western Contracting Corp. v. State Hwy. Dep't, 125 Ga. App. 376, 187 S.E.2d 690 (1972).
Ambiguous terms of contract are to be interpreted against party which drafted the terms. C.A. May Marine Supply Co. v. Brunswick Corp., 557 F.2d 1163 (5th Cir. 1977).
Court required to construe ambiguous contract against one who made the contract. Float-Away Door Co. v. Continental Cas. Co., 372 F.2d 701 (5th Cir. 1966), cert. denied, 389 U.S. 823, 88 S. Ct. 58, 19 L. Ed. 2d 76 (1967).
Paragraph (5) of O.C.G.A.
§ 13-2-2 inapplicable to contract prepared by one undertaking no obligation under it. - Statute has no application when contract provides for obligation payable to one who prepares contract and who does not execute the contract or undertake any obligation in the contract. Moorefield v. Fidelity Mut. Life Ins. Co., 135 Ga. 186, 69 S.E. 119 (1910).
Utilization of paragraphs (4) and (5) of O.C.G.A.
§ 13-2-2 together in construing contract. - While lease contracts, like other contracts, where construction is doubtful, must be construed against party drawing and executing the lease contracts, nevertheless, a contract should not be torn apart and construed in pieces, but the court should look to the entire instrument and so construe the contract as to reconcile the contract's different parts and reject construction which leads to contradiction, in order to ascertain true intention of parties, which is real purpose of judicial construction of contracts. Sachs v. Jones, 83 Ga. App. 441, 63 S.E.2d 685 (1951).
In ascertaining intent, that construction will be favored which gives meaning and effect to all terms of contract over that which nullifies and renders meaningless part of language therein contained, and in cases of doubt, contract will be construed most strongly against one who prepared the contract. Brooke v. Phillips Petro. Co., 113 Ga. App. 742, 149 S.E.2d 511 (1966).
Author of ambiguous contract bears burden of explanation if seeking favorable construction.
- Party who wrote contract and was author of ambiguity has burden of explaining the ambiguity when the author seeks to take benefit of construction favorable to the author; and if the author does not clear up meaning beyond doubt, doubt must be given against the author. Hill v. John P. King Mfg. Co., 79 Ga. 105, 3 S.E. 445 (1887).
Paragraph (5) of O.C.G.A.
§ 13-2-2 to be followed by federal courts as rule of decision. - Paragraph (5) is common law, but nonetheless a statute of Georgia which, together with construction of it by state courts, is to be followed in federal courts as rule of decision. Davis v. Jefferson Std. Life Ins. Co., 73 F.2d 330 (5th Cir. 1934), cert. denied, 294 U.S. 706, 55 S. Ct. 352, 79 L. Ed. 1241 (1935).
Ambiguity in letter should be construed most strongly against author. Stewart v. Finance Co., 49 Ga. App. 462, 176 S.E. 73 (1934).
Construction against party drafting instrument.
- An omnibus agreement between the Chapter 11 debtor and the debtor's former officer before confirmation of the debtor's plan of reorganization sufficed as an informal proof of claim because it was contemplated in the plan, was critical to confirmation, and placed the debtor on notice of the officer's claim, and alternatively, under O.C.G.A. § 13-2-2(5), any ambiguity as to whether the debtor intended to waive the officer's filing of a proof of claim or any conflict between the terms of the omnibus agreement and the plan was resolved against the debtor's successor company, whose predecessor was the entity under whose direction the plan was written. In re First Am. Health Care of Ga., Inc., 288 Bankr. 598 (Bankr. S.D. Ga. 2002).
Language in a contract between a contractor and a county was construed against the county because the county was the drafter of the contract. Yates Paving & Grading Co. v. Bryan County, 265 Ga. App. 578, 594 S.E.2d 756 (2004).
Contracts must be construed against the party drawing and executing the contract, pursuant to O.C.G.A. § 13-2-2(5); nevertheless, a contract should not be torn apart and construed in pieces; instead, the court should look to the entire instrument and so construe the contract as to reconcile the contract's different parts and reject construction which leads to contradiction. Snipes v. Marcene P. Powell & Assocs., 273 Ga. App. 814, 616 S.E.2d 152 (2005).
Because a participation agreement required the originating bank to notify the participating bank when it changed the credit ratings on a construction loan, which included material downgrades in the originating bank's relationship with the borrower, and because the term "downgrades" was ambiguous, the ambiguity was construed against the originating bank, which had drafted the agreement. Sun Am. Bank v. Fairfield Fin. Servs., F. Supp. 2d (M.D. Ga. Feb. 9, 2010).
Auditor's contract with a city provided that the auditor would audit accounts payable vendor files for duplicate payments, not that the auditor would audit for lost revenues; therefore, the auditor was not entitled to recover a 20 percent fee for $11 million in lost revenues the auditor discovered due to the county clerk's office using an incorrect millage rate for transfer taxes. Since the Recovery of Payment Form was ambiguous, the form was construed against the auditor as the drafter pursuant to O.C.G.A. § 13-2-2(5). ADI Fin. Servs. v. City of Atlanta, 310 Ga. App. 700, 714 S.E.2d 270 (2011).
Following a car crash in which the deceased insured was at fault, leaving five people injured, the insurer was entitled to summary judgment on the insured's estate's claim seeking an excess judgment based on the insurer's failure to settle with two plaintiffs for the policy limits. The plaintiffs' settlement offer did not contain a time limitation, or at best it was ambiguous, giving the insurer a reasonable time to respond, yet the plaintiffs' counsel revoked the offer 41 days later. First Acceptance Ins. Co. of Ga. v. Hughes, 305 Ga. 489, 826 S.E.2d 71 (2019).
Inadvertent drafting mistake.
- Although a subdivision's restrictive covenants erroneously referred to paragraph 10 rather than paragraph 14 in discussing the abolishment or amendment of the covenants, it was clearly an inadvertent error on the part of the drafter. Gilbert v. Canterbury Farms, LLC, 346 Ga. App. 804, 815 S.E.2d 303 (2018).
Ambiguous terms of suretyship or guaranty contract construed most strongly against maker of contract. Polk v. Slaton, 54 Ga. App. 328, 187 S.E. 846 (1936).
Uncertainty or ambiguity in lease construed in lessee's favor.
- If there is life uncertainty or even ambiguity in a lease, it is lessee and not lessor who is to be favored, because lessor had power of stipulating in the lessor's own favor, though the lessor may have neglected to do so. Farm Supply Co. v. Cook, 116 Ga. App. 814, 159 S.E.2d 128 (1967).
If the language in a franchise agreement is uncertain and ambiguous, every rule of contract interpretation, landlord-tenant law, and summary judgment procedure requires a court to interpret the agreement in favor of the lessee and against the lessor who prepared the contract language. Simmerman v. DOT, 167 Ga. App. 383, 307 S.E.2d 4 (1983).
After a landlord undertook the obligation under the lease to rebuild and repair the premises after destruction by fire, an interpretation of the extent of its duties should be made favoring the recipient, the tenant. Promenade Assocs. v. Finish Line, Inc., 194 Ga. App. 741, 391 S.E.2d 714 (1990).
Language of note given by tenant for rent must be taken most strongly against tenant. McBurney v. McIntyre, 38 Ga. 261 (1868).
Ambiguity in lease with option to purchase.
- An ambiguity in a lease of real property with an option to purchase was construed to mean that a "down payment" made at the time of execution of the lease was not intended as consideration for the option to purchase, but was to be applied as a down payment on the real property itself, upon the purchasers' exercise of the option. Smith v. Persichetti, 245 Ga. App. 357, 537 S.E.2d 441 (2000).
Insurance contracts to be strictly construed against insurer. Lee v. Fidelity & Cas. Co., 567 F.2d 1340 (5th Cir. 1978).
Insurance policies are prepared and proposed by insurers; and, when such contract is capable of being construed in two ways, that interpretation must be placed upon the contract which is most favorable to insured. Especially is this true where construction insisted upon by company would work forfeiture of policy, while other will preserve obligations of both company and insured. State Mut. Life Ins. Co. v. Forrest, 19 Ga. App. 296, 91 S.E. 428 (1917), see also Massachusetts Benefit Life Ass'n v. Robinson, 104 Ga. 256, 30 S.E. 918, 42 L.R.A. 261 (1898); Mutual Life Ins. Co. v. Durden, 9 Ga. App. 767, 72 S.E. 295 (1911).
If insurance policy is so drawn as to require interpretation, and to be fairly susceptible of two different constructions, the one will be adopted that is most favorable to insured. American Cas. Co. v. Callaway, 75 Ga. App. 799, 44 S.E.2d 400 (1947).
If any doubt should exist in regard to construction of contract of insurance, doubt should be resolved in favor of insured, and policy should be liberally construed in favor of validity of contract and against insurance company. American Cas. Co. v. Callaway, 75 Ga. App. 799, 44 S.E.2d 400 (1947).
In construing insurance contracts, any exception in policy of insurance altering terms of general liability is to be taken and construed most strongly against insurer. American Cas. Co. v. Callaway, 75 Ga. App. 799, 44 S.E.2d 400 (1947).
If language is ambiguous in an insurance policy, the language must be construed in a light favorable to the insured. Nationwide Mut. Fire Ins. Co. v. Tomlin, 181 Ga. App. 413, 352 S.E.2d 612 (1986); Claussen v. Aetna Cas. & Sur. Co., 259 Ga. 333, 380 S.E.2d 686 (1989); Bituminous Cas. Corp. v. Advanced Adhesive Tech., Inc., 73 F.3d 335 (11th Cir. 1996).
Any exclusion sought to be invoked by the insurer will be liberally construed in favor of the insured and strictly construed against the insurer unless it is clear and unequivocal. First Ga. Ins. Co. v. Goodrum, 187 Ga. App. 314, 370 S.E.2d 162 (1988).
Since the language on the first page of an insurance contract could be construed to provide accidental death benefits of $15,000 and conflicted with a later provision providing for only $10,000, the trial court erred when the court allowed the provision most favorable to the insurance company to control. Cole v. Life Ins. Co., 236 Ga. App. 229, 511 S.E.2d 596 (1999).
Policy provision regarding the provision of liability coverage for a person "Using a vehicle without a reasonable belief that the person is entitled to do so" was ambiguous because it is susceptible of three logical and reasonable interpretations and, therefore, adoption of the interpretation least favorable to the insurer was required. Georgia Farm Bureau Mut. Ins. Co. v. John Deere Ins. Co., 244 Ga. App. 546, 536 S.E.2d 258 (2000).
Insurance policy is to be construed most strongly against insurance company only in event meaning is doubtful or ambiguous, and contract is reasonably susceptible to meaning arrived at by construction against company. American Aviation & Gen. Ins. Co. v. Georgia Telco Credit Union, 223 F.2d 206 (5th Cir. 1955).
It is cardinal principle of insurance law that policy of insurance is to be construed liberally in favor of insured and strictly as against insurer. Continental Cas. Co. v. Robertson, 245 F.2d 604 (5th Cir. 1957).
When terms of policy are not clear and unambiguous, insurance policy to be construed liberally in favor of insured. Float-Away Door Co. v. Continental Cas. Co., 372 F.2d 701 (5th Cir. 1966), cert. denied, 389 U.S. 823, 88 S. Ct. 58, 19 L. Ed. 2d 76 (1967).
When policy is ambiguous as to which parties were to be named insured, such ambiguity must be construed most strongly against insurer. Greenbriar Shopping Ctr., Inc. v. Lorne Co., 310 F. Supp. 303 (N.D. Ga. 1969), aff'd, 424 F.2d 544 (5th Cir. 1970).
Any lack of clarity or ambiguity in insurance policy is considered responsibility of insurance company, for it is company that drafts policies and must be required to draft clearly. Ranger Ins. Co. v. Culberson, 454 F.2d 857 (5th Cir. 1971), cert. denied, 407 U.S. 916, 92 S. Ct. 2440, 32 L. Ed. 2d 691 (1972).
After determining that the definition of the term "total disability" in two of an insurer's disability policies was ambiguous where the term stated only that an insured was totally disabled if the insured was unable to perform the major duties of the insured's occupation, in accordance with the directive in O.C.G.A. § 13-2-2(5), the term "total disability" was construed against the insurer, such that the insured was not required to show that the insured was unable to perform all of the major duties of the insured's occupation to qualify as being totally disabled. Putnal v. Guardian Life Ins. Co. of Am., F. Supp. 2d (M.D. Ga. Sept. 29, 2006).
Ambiguous insurance clause construed against drafter.- If an insurance clause is ambiguous as to coverage, the clause has to be most strongly construed against the party drafting the clause. Giles v. National Union Fire Ins. Co., 578 F. Supp. 376 (M.D. Ga. 1984).
Paragraph (5) of O.C.G.A.
§ 13-2-2 applied to insurance policies so as to preserve company's and insured's obligations. - Insurance policies are prepared and proposed by insurers; therefore, if insurance contract is capable of being construed in two ways, that interpretation must be placed upon the contract which is most favorable to the insured. This rule applies where construction insisted upon by company would work forfeiture of policy, while other will preserve obligations of both company and insured. Peachtree Roxboro Corp. v. U.S. Cas. Co., 101 Ga. App. 340, 114 S.E.2d 49 (1960).
Ambiguity in settlement agreement.
- Settlement provision between the decedent and his former wife, regarding whether or not decedent's estate was liable only for those medical expenses for which Medicare provided partial payment or reimbursement, is ambiguous, thereby requiring the court to interpret the contract against the decedent. Franklin v. Franklin, 262 Ga. 218, 416 S.E.2d 503 (1992).
Agreements by joint venture construed against drafter's interest.
- Under O.C.G.A. § 13-2-2(5), an agreement drafted by a joint venture must be construed most strongly against its interests. The application of the rules of construction require a finding that there was no waiver of the executor's commissions; that the executor was entitled to collect the commissions prior to any payment of net proceeds to the joint venture; that the net proceeds of any recovery of the judgment against another party remained an asset of the estate, with sufficient sums limitedly assigned as security for payment to satisfy the promissory note and with a priority of payment of this debt; and that the balance of the net proceeds remaining after payment of the balance and interest on the promissory note was an asset of the estate. In re Estate of Sims, 259 Ga. App. 786, 578 S.E.2d 498 (2003).
When security deed note does not provide for automatic acceleration of indebtedness in the event of default nor does it provide for waiver of notice of such acceleration, but when the deed appears to contain such a waiver of notice of acceleration, construing the documents most strongly against the creditor as drafter thereof, in the event of default, there is no automatic acceleration of the indebtedness nor is there a waiver of notice of such acceleration. First Fed. Sav. & Loan Ass'n v. Standard Bldg. Assocs., 85 Bankr. 644 (Bankr. N.D. Ga. 1988).
Grammatical Construction
Effectuation of intent may require transposition of words and sentences and ignoring of minor clauses. McVay v. Anderson, 221 Ga. 381, 144 S.E.2d 741 (1965).
Court may supply words "per annum" after interest stipulation in note.
- Court may supply words per annum after words "with interest at 8%," appearing on note, in exercise of the court's duty of construing contract. Brooks v. Boyd, 1 Ga. App. 65, 57 S.E. 1093 (1907).
Punctuation of instrument may be considered when meaning is doubtful, but it cannot control if meaning otherwise plainly appears. Bridges v. Home Guano Co., 33 Ga. App. 305, 125 S.E. 872 (1924).
Words control punctuation marks.
- Punctuation is no part of the English language, and is a most fallible guide by which to interpret a writing. Words control punctuation marks, and not punctuation marks the words. Bridges v. Home Guano Co., 33 Ga. App. 305, 125 S.E. 872 (1924).
Court may insert proper punctuation marks in construing contract.
- In order to arrive at meaning of parties, proper punctuation marks may be inserted by court in construing instrument. Bridges v. Home Guano Co., 33 Ga. App. 305, 125 S.E. 872 (1924).
Semicolon could be read as "and" or "or".
- In an insurance dispute arising out of denial of coverage for a residence fire, the policy provisions expressly covered the loss of the house due to fire; therefore, the insured was entitled to summary judgment on the issue of coverage although the home was not the insured's primary residence. The policy did not define the term "reside," and a semicolon in the definition of "residence premises" could be read as "and" or "or," making it ambiguous. Lee v. Mercury Ins. Co., 343 Ga. App. 729, 808 S.E.2d 116 (2017), cert. denied, No. S18C0518, 2018 Ga. LEXIS 491 (Ga. 2018).
Insurance policy too vague to enforce.
- Title insurance policy provision attempting to limit the insurer's liability was too vague to be enforced, although the insured had recovered over 100 percent of the amount loaned; a policy provision reducing the amount of insurance did not apply a provision defining the amount of the unpaid principal indebtedness, which included interest. O.C.G.A. § 13-2-2 could not replace contract terms other than conjunctions. Doss & Assocs. v. First Am. Title Ins. Co., 325 Ga. App. 448, 754 S.E.2d 85 (2013).
Preference for Written over Printed Matter
Written provisions in contract will prevail over printed matter when the provisions conflict. Batson-Cook Co. v. Poteat, 147 Ga. App. 506, 249 S.E.2d 319 (1978); Fort Oglethorpe Assocs. II v. Hails Constr. Co., 196 Ga. App. 663, 396 S.E.2d 585 (1990).
When interpreting any conflict in a contract, the handwritten portion prevails over the printed portion if the provisions cannot be reconciled. Lester v. Crooms, Inc., 157 Ga. App. 377, 277 S.E.2d 751 (1981).
Written words control if in conflict with mere figures. Bryant v. Georgia Fertilizer & Oil Co., 13 Ga. App. 448, 79 S.E. 236 (1913).
Words written with pen and ink are entitled to more consideration than printed words. Hodsdon v. Whitworth, 153 Ga. App. 783, 266 S.E.2d 561 (1980).
Handwritten limiting phraseology inserted after printed and typed material is worthy of special consideration. Sims v. Bryan, 140 Ga. App. 69, 230 S.E.2d 39 (1976).
Provisions specially inserted by parties are to take precedence over printed provisions of contract form. Atlanta Baggage & Cab Co. v. Loftin, 88 Ga. App. 98, 76 S.E.2d 92 (1953).
Typewritten provision must govern over conflicting printed one. Aetna Life & Cas. Co. v. Charles S. Martin Distrib. Co., 120 Ga. App. 133, 169 S.E.2d 695 (1969); Quinlan v. Bell, 189 Ga. App. 8, 374 S.E.2d 823 (1988).
Generally, typewritten words of contract are entitled to more consideration than printed part. Hodsdon v. Whitworth, 153 Ga. App. 783, 266 S.E.2d 561 (1980).
Although typewritten words are generally entitled to more consideration than pre-printed items, that principle applies when a conflict exists between the specially-inserted provisions and the printed form, and in the absence of any conflict between the form and inserted provisions in the deed, the pre-printed language cannot be ignored, "boilerplate" arguments notwithstanding. Safeco Title Ins. Co. v. Citizens & S. Nat'l Bank, 190 Ga. App. 809, 380 S.E.2d 477 (1989); Patellis v. 100 Galleria Parkway Assocs., 214 Ga. App. 154, 447 S.E.2d 113 (1994).
Because the contract was printed, the typewritten portions of the contract prevailed over the printed language. Asian Square Partners, L.P. v. Cuong Quynh Ly, 238 Ga. App. 165, 518 S.E.2d 166 (1999).
Words not integral to contract.
- If printed matter forming part of contract must yield to written terms inconsistent with words printed, a fortiori mere printed statement in letterhead, which does not form integral part of contract at all, cannot override or modify distinct terms of contract with which it conflicts. Augusta Factory v. Mente & Co., 132 Ga. 503, 64 S.E. 553 (1909).
Clause written upon face of contract, inconsistent with one printed upon back, generally accepted as expressing intention of parties, rather than inconsistent clause printed upon back. Surles v. Milikin, 97 Ga. 485, 25 S.E. 322 (1895); Caddick Milling Co. v. Moultrie Grocery Co., 22 Ga. App. 524, 96 S.E. 583 (1918).
Parties' intent is paramount consideration and preservation of whole contract preferred.
- While it is well settled that when contract is partly written and partly printed, written portion is entitled to most consideration and if printed portions of contract cannot be reconciled with written portions, latter prevail, still cardinal rule of construction is to ascertain intention of parties, and construction which will uphold contract in whole and in every part is to be preferred, and whole contract should be looked to in arriving at construction of any part. Capital Wall Paper Co. v. Callan Court Co., 38 Ga. App. 428, 144 S.E. 135 (1928).
Written addition to a settlement agreement did not control where the printed major portion thereof was tailored to list the names of the parties to be released and the specific incident for which the release was to apply. Campos v. Williams, 217 Ga. App. 296, 457 S.E.2d 243 (1995).
When Time Is of the Essence
For time to be of essence, it should clearly appear that such was intent; as, for example, by provision that agreement shall be void unless act named be completed by certain day, or by other equivalent expression. Ellis v. Bryant, 120 Ga. 890, 48 S.E. 352 (1904).
In a suit by a buyer against a seller for breach of a real property sales contract, it was error to find that time was of the essence under O.C.G.A. § 13-2-2; the contract did not contain such a provision, and the parties' conduct of extending the closing date after the designated date passed did not show that time was of the essence. Peachstate Developers, LLC v. Greyfield Res., Inc., 284 Ga. App. 501, 644 S.E.2d 324 (2007).
Time is of essence where expressly provided or where necessarily so from circumstances.
- Time is of essence of contract when parties have expressly so treated it, or when it is necessarily so from nature and circumstances of contract. Henry Cotton Mills v. Shoenig & Co., 33 Ga. App. 467, 127 S.E. 238 (1925).
Enforcement of commercial lease.
- In a lessor's action to enforce the provisions of a commercial lease pursuant to O.C.G.A. § 13-1-11, because a lessee's predecessor-in-interest failed to strictly comply with a cancellation option in the lease, and time was of the essence, the trial court erred in ruling otherwise, resulting in an expiration of the option due to the failure to timely exercise the option; thus, on remand the lessor was entitled to summary judgment on the lessor's possession claim and to the past rent due under the lease for the term sought. Piedmont Ctr. 15, LLC v. Aquent, Inc., 286 Ga. App. 673, 649 S.E.2d 733 (2007), cert. denied, 2007 Ga. LEXIS 749 (Ga. 2007).
Time is of essence of contract where nature of contract indicates such intent of parties. Traylor, Spencer & Co. v. Brimbery, 2 Ga. App. 84, 58 S.E. 371 (1907).
When time is of essence of contract, it may be waived; and when contract is not treated as at an end, but there is insistence as to performance on one side after date of maturity, and part performance accepted on the other, this amounts to a waiver. King v. Lipsey, 142 Ga. 832, 83 S.E. 957 (1914); Lee v. Wilmington Sav. Bank, 31 Ga. App. 327, 120 S.E. 689 (1923), cert. denied, 31 Ga. App. 812 (1924), and see Jordan v. Rhodes, 24 Ga. 478 (1858); Moody v. Griffin, 60 Ga. 459 (1878).
When no time specified for performance, presumption is that parties intended performance within reasonable time. Cassville-White Assocs. v. Bartow Assocs., 150 Ga. App. 561, 258 S.E.2d 175 (1979).
If time fixed, but not stated to be of essence, issue open to construction.
- If time is fixed, but there is no express statement that it is of essence of contract, it is open to construction to determine whether such is the case. Alabama Constr. Co. v. Continental Car & Equip. Co., 131 Ga. 365, 62 S.E. 160 (1908).
In contracts for sale of personal property, wherein a time is named for delivery, it is a question of construction, in each particular case, as to whether or not time named is material part of contract, breach of which will give other party right of action therefor. Gude & Walker v. J. B. Bailey Co., 4 Ga. App. 226, 61 S.E. 135 (1908); Augusta Factory v. Mente & Co., 132 Ga. 503, 64 S.E. 553 (1909).
In a marital settlement agreement which provided that the former husband would remove the ex-wife's name from the mortgage on certain marital property within 12 months, and that the ex-wife would quitclaim ex-wife's interest in the property to the husband, time was not of the essence under O.C.G.A. § 13-2-2(9) because the agreement did not provide that it was void if the former husband's obligation was not performed within 12 months, and another provision requiring the husband to make mortgage payments on the property in the interim and to indemnify the ex-wife for any mortgage debt also showed time was not of the essence; therefore, it was error to find the ex-wife could retain an interest in the property because the husband's estate did not perform this obligation within 12 months. Torgesen v. Torgesen, 274 Ga. App. 298, 617 S.E.2d 223 (2005).
Contract term prescribing time for performance may be enlarged by agreement based on consideration. Gude & Walker v. J. B. Bailey Co., 4 Ga. App. 226, 61 S.E. 135 (1908).
Parties to notes may make time of essence by provision for acceleration upon default.
- Although time is not generally of the essence of a contract, it may become so by express stipulation or reasonable construction, and it is competent for parties to series of promissory notes, maturing monthly through several years, to provide that in case of default in payment of any two of them, and continuation of such default for specified period, the entire series shall, at option of holder thereof, become due and collectible. Cone v. Hunter, 38 Ga. App. 45, 142 S.E. 468 (1928).
Partner competent to contract for firm may make time of essence of contract, and bind firm to abide legal consequence of so doing. Van Winkle & Co. v. Wilkins, 81 Ga. 93, 7 S.E. 644, 12 Am. St. R. 229 (1888).
Time of essence in contract for sale of land where such intent is clear.
- Ordinarily in contract for sale of land time is not of essence of contract; courts lean against such construction for reason that it would result in enforcement of penalty, and because interest is ordinarily treated as full compensation for delay. Ellis v. Bryant, 120 Ga. 890, 48 S.E. 352 (1904); Burkhalter v. Roach, 142 Ga. 344, 82 S.E. 1059 (1914).
Time may be made of the essence of contract for sale of lands by express agreement or reasonable construction, but ordinarily courts lean against such construction. If time is of the essence it may be waived; and subsequent conduct of obligor may have that effect. Eaton v. Harwood, 198 Ga. 240, 31 S.E.2d 473 (1944).
For time to be treated as of the essence of contract for sale of land, it should clearly appear therefrom that such was intention of parties; as, for example, by provision that agreement shall be void unless act named be completed by certain day, or by other equivalent expression. Mangum v. Jones, 205 Ga. 661, 54 S.E.2d 603 (1949); Scheer v. Doss, 211 Ga. 7, 83 S.E.2d 612 (1954).
Contracts for purchase of real property.
- General rule is that, in contracts for purchase of personal property, time is not of essence of contract unless parties have expressly so treated it, or when it is necessarily so from nature and circumstances of contract. Sneed v. Wiggins, 3 Ga. 94 (1847).
An option contract is peculiarly a contract of which time is of the essence. Because of one-sided nature of an option contract, time of election by optionee is of essence of contract in equity as well as in law, whether contract expressly so stipulates or not. Hughes v. Holliday, 149 Ga. 147, 99 S.E. 301 (1919).
As a general rule, time fixed by contract within which option may be exercised is to be regarded as of the essence. Henry Cotton Mills v. Shoenig & Co., 33 Ga. App. 467, 127 S.E. 238 (1925).
An option is peculiarly an agreement of which time is of the essence. Gulf Oil Corp. v. Willcoxon, 211 Ga. 462, 86 S.E.2d 507 (1955); Bowden v. Mews Dev. Corp., 247 Ga. 546, 277 S.E.2d 653 (1981).
Options appendant and options in gross.
- Time is of the essence of options appendant to a lease contract as well as options in gross. Bowden v. Mews Dev. Corp., 247 Ga. 546, 277 S.E.2d 653 (1981).
When contract stipulates time for shipment, parol evidence admissible to show time of essence.
- When written contract for sale of personal property fixed time within which shipment should be made by vendor to purchaser, parol evidence was admissible to show that time was of essence of contract. Van Winkle & Co. v. Wilkins, 81 Ga. 93, 7 S.E. 644, 12 Am. St. R. 299 (1888); Alabama Constr. Co. v. Continental Car & Equip. Co., 131 Ga. 365, 62 S.E. 160 (1908).
Time generally of essence when subject matter of contract of speculative or fluctuating value.
- In contract for sale of articles of varying seasonal value, time for delivery is to be taken as an essential element of contract. Beck & Gregg Hdwe. Co. v. Hall Hdwe. Co., 30 Ga. App. 224, 117 S.E. 271 (1923).
When subject matter of contract is of speculative or fluctuating value, it is generally held that parties have intended that time shall be of essence. Henry Cotton Mills v. Shoenig & Co., 33 Ga. App. 467, 127 S.E. 238 (1925).
Time of essence where contract provides for immediate reversion to grantor upon default in payment.
- Where deed by implication definitely fixed as times for performance dates prescribed by law for ultimate payment of taxes, and provided also that failure to comply with condition would cause title and remainder interest immediately to revert to grantor, only reasonable construction is that time should be treated as of essence of contract. Evans v. Brown, 196 Ga. 634, 27 S.E.2d 300 (1943).
Time fixed for performance of condition subsequent must ordinarily be complied with.
- When no time is fixed for performance of a condition subsequent, it is generally to be performed within reasonable time; but if particular time is given, condition must ordinarily be performed within that time. Evans v. Brown, 196 Ga. 634, 27 S.E.2d 300 (1943).
Time of essence of contract stipulating time for payments and containing acceleration clause.
- Contract to pay money, in which it is expressly stipulated that installments shall be paid at specified times, and that if one installment is not promptly paid, whole sum shall be due and payable, time is essence of contract, and if party agreeing to pay fails to do so, that party is not entitled to relief in equity. Sneed v. Wiggins, 3 Ga. 94 (1847).
Time of essence where builder knows building has been leased from time set for completion.
- When builder agrees to erect building within certain time, knowing that it has been leased from time named for building's completion, and breaks stipulation as to time, the builder is ordinarily liable to owner for loss of rent. Albany Phosphate Co. v. Hugger Bros., 4 Ga. App. 771, 62 S.E. 533 (1908).
Time probably of essence of contract for publication of advertisement in specified issues of newspaper.
- It would seem that if contract is made for publication of advertisement in specified issues of newspaper, reasonable construction of contract would make time of essence. Springfield Metallic Casket Co. v. Dunn, 12 Ga. App. 8, 76 S.E. 644 (1912).
On facts, time was of essence of contract by reasonable construction. Sewell v. C.I.T. Corp., 43 Ga. App. 676, 160 S.E. 99 (1931).
Construction that time is of the essence may be determined as a matter of law.
- When a contract for sale clearly fixes by unambiguous language a time for performance, and when there is no evidence tending to show that the parties did not intend that time should be of the essence of the contract, but the contract and the surrounding circumstances manifestly show that the parties intended that time should be of the essence, the court may so rule as matter of law. Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 507 S.E.2d 493 (1998).
On facts, time of essence as to some provisions of contract but not to others. Savannah Ice Delivery Co. v. American Refrigerator Transit Co., 110 Ga. 142, 35 S.E. 280 (1900); Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695, 58 S.E. 200 (1907).
Where set delivery date subject to change at will of vendee, time not of essence.
- In contract where date named is not fixed as final and definite date for delivery, but time of shipment can be accelerated or deferred at will of vendee, it could not reasonably be said that shipment on particular date mentioned in agreement was intended by parties to be of very essence of contract. Cobb Lumber Co. v. Sunny S. Grain Co., 36 Ga. App. 140, 135 S.E. 759 (1926).
Time not of essence of promise to return borrowed money in ten days.
- Where one person borrowed money of another and promised to return the money in ten days or send lender note which the person held on third party, it was held that equity would relieve against such contract if satisfactorily proven, because ten days within which money was to be returned was not of essence of contract. Cock & Thompson v. Brown & Carmichael, 30 Ga. 925 (1860).
Notice of condition making prompt performance impossible.- It is inequitable to allow an owner to reap the benefits of a contractor's work without reimbursing the owner for the cost of the performance where the owner authorized the work and then withdrew permission despite notice of a condition which made prompt performance impossible. Anderson v. Golden, 569 F. Supp. 122 (S.D. Ga. 1982).
Liquidated damages as remedy.
- Time was of the essence in a contract for the sale of a motel, and the purchaser's failure to assume a loan and to close on the purchase entitled the vendor to retain the purchaser's pre-paid closing costs as liquidated damages, where the contract did not explicitly state that time was of the essence but its terms made that construction reasonable; even if the contract were construed to allow the sale to be closed in a reasonable time, the purchaser's delay of eight months was patently unreasonable. Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 507 S.E.2d 493 (1998).
Recovery in quantum meruit.- Georgia follows the English rule which allows recovery in quantum meruit by a plaintiff who is in substantial breach of the contract as long as the breach is not willful or deliberate. Anderson v. Golden, 569 F. Supp. 122 (S.D. Ga. 1982).
OPINIONS OF THE ATTORNEY GENERAL
Meaning of term "qualified physical therapist" probably for judicial rather than jury determination.
- In determining meaning of term "qualified physical therapist," court would be inclined to decide question in favor of judicial construction rather than determination by jury. 1969 Op. Att'y Gen. No. 69-483.
RESEARCH REFERENCES
Am. Jur. 2d.
- 18 Am. Jur. 2d, Contribution, § 1. 21 Am. Jur. 2d, Customs and Usages, §§ 16 et seq., 27, 28, 30. 74 Am. Jur. 2d, Time, § 4.
C.J.S.- 17A C.J.S., Contracts, §§ 296, 302, 305 et seq., 318, 358 et seq., 597.
ALR.
- Construction of contract as regards services contemplated by it where attorney claims compensation in addition to amount named therein, 2 A.L.R. 844.
Construction of provision for payment of premiums by insurer, 5 A.L.R. 1643.
Custom or previous dealing as imposing an obligation upon party to contract to accept something else in lieu of cash, 8 A.L.R. 1268.
Construction of provision for free gas in oil and gas lease, 9 A.L.R. 89.
Competency of parol evidence to show a money consideration additional to that stipulated in a written contract, 12 A.L.R. 354.
Meaning of "by" as fixing time for performance of an act or happening of an event, 12 A.L.R. 1168; 21 A.L.R. 1543.
What is "accident" within provision of bond or contract indemnifying against damage or injury to person or property by accident in performance of building or construction contract, 12 A.L.R. 1409.
Admissibility of parol evidence to show that a bill or note was conditional, or given for a special purpose, 20 A.L.R. 421; 54 A.L.R. 702, 75 A.L.R. 1519, 105 A.L.R. 1346.
Meaning of phrase "in good standing" employed in contract of mutual benefit association with member, 23 A.L.R. 340.
Construction of contract to pay commissions on all sales to customers obtained by other party, 23 A.L.R. 451.
Validity and construction of contract for sale of season's output, 23 A.L.R. 574.
Admissibility of parol evidence to vary or explain contract implied from the regular endorsement of a bill or note, 54 A.L.R. 999, 92 A.L.R. 721.
Meaning of phrase, "market price," or "current market price," as employed in contract, 55 A.L.R. 268.
What amounts to settlement of action within contractual provisions in relation to compensation of attorney, 55 A.L.R. 428.
Modification of sealed instrument by subsequent parol agreement, 55 A.L.R. 685.
Waiver by parol of provision in sealed instrument, 55 A.L.R. 700.
Validity, construction, and effect of provision reserving to seller the right to demand cash or satisfactory security in the event that buyer's credit or financial responsibility becomes impaired, 64 A.L.R. 1117.
Admissibility of parol evidence to explain ambiguity in description of land in deed or mortgage, 68 A.L.R. 4
Parol-evidence rule as applicable to agreement for improvements or alterations by vendor of real property, 68 A.L.R. 245.
Construction of contractual provisions as to interest as regards time from which interest is to be computed, 69 A.L.R. 958.
Motorcycle as within contract, statute, or ordinance in relation to motor cars, motor-driven cars, etc., 70 A.L.R. 1253.
May part performance of oral contract to convey be predicated upon possession or improvement by one spouse of real property of other, 74 A.L.R. 218.
Parol or extrinsic evidence to show that the parties to a written contract of sale of personal property merely describing the property as a class or subject contemplated a particular quality or kind, within the descriptive terms, 75 A.L.R. 1166.
Parol-evidence rule as affecting extrinsic evidence to show or to negative usury, 82 A.L.R. 1199; 104 A.L.R. 1261.
Contract granting timber rights as covering timber that becomes such, or reaches prescribed dimensions, after execution, but during period covered, 94 A.L.R. 1420.
"Contractual" consideration as regards parol-evidence rule, 100 A.L.R. 17.
Admissibility of parol evidence as to meaning of cryptic words, abbreviations, signs, symbols, or figures appearing in written contracts or other writings, 100 A.L.R. 1465.
Contract of sale which calls for a definite quantity but leaves the quality, grade, or assortment optional with one of the parties as subject to objection of indefiniteness, 106 A.L.R. 1284.
Parties or obligations to which time-of-essence clause in contract applies, 107 A.L.R. 275.
Construction and application of provision of construction contracts as regards retention of percentage of current earnings until completion, 107 A.L.R. 960.
Validity and construction of contract by labor unions to continue salary or wages in whole or part or pay benefits if other party loses employment or position because of joining union, 114 A.L.R. 1300; 125 A.L.R. 1260.
Validity, construction, and enforceability of provision of lease creating or reserving option or election for future enlargement, reduction, or other variation as regards the premises to be occupied by tenant, 129 A.L.R. 772.
What taxes are within contemplation of contract, which provides for payment or assumption of taxes or varies consideration with reference to taxes, 140 A.L.R. 517.
Parol evidence in relation to assumption of mortgage debt by grantee of mortgaged property, 143 A.L.R. 548.
Conflict between provisions of note and of conditional sale instrument in connection with note is given, 143 A.L.R. 591.
Parol evidence rule as applied to lease, 151 A.L.R. 279.
Time for exercise of reserved option to terminate, cancel, or rescind contract, 164 A.L.R. 1014.
Parol evidence rule as applied to question of easement by necessity or visible easement, 165 A.L.R. 567.
Validity and construction of contract for exclusive representation of persons participating in, or connected with, entertainment enterprises, 175 A.L.R. 617.
Factors and elements considered in fixing rental for extended or renewal term where renewal or extension clause leaves amount of rental for future determination, 6 A.L.R.2d 448.
Parol evidence rule as applicable to agreement not to engage in competition with a business sold, 11 A.L.R.2d 1227.
Contract by seller of business not to compete as affecting his lease of other property in restricted area to one who he knows will compete with purchaser, 14 A.L.R.2d 1333.
Failure to object to parol evidence, or voluntary introduction thereof, as waiver of defense of statute of frauds, 15 A.L.R.2d 1330.
Sufficiency of description in standing timber deed or contract, 35 A.L.R.2d 1422.
Applicability of parol evidence rule to written listing agreement of real-estate broker, 38 A.L.R.2d 542.
Parol evidence to show that lease of personalty, absolute on its face, is conditional sale, 57 A.L.R.2d 1076.
Conflict of laws as to usage and custom, with respect to interpretation or performance of a contract, 60 A.L.R.2d 467.
Applicability of parol evidence rule to agreement between stockbroker and customer, 60 A.L.R.2d 1135.
Admissibility of parol evidence with respect to reservations or exceptions upon conveyance of real property, 61 A.L.R.2d 1390.
Construction of clause in building contract that structure will comply with regulations, plans, or standards of the Federal Housing Administration or the Veterans' Administration, 67 A.L.R.2d 1017.
Time specified in real-estate contract for giving notice of exercise of option to purchase as of essence, 72 A.L.R.2d 1127.
Admissibility of extrinsic evidence to identify person or persons intended to be designated by the name in which a contract is made, 80 A.L.R.2d 1137.
Coverage and exclusions under hospital or medical service (Blue Cross-Blue Shield) contracts, 81 A.L.R.2d 927; 94 A.L.R.3d 990.
Admissibility of parol evidence as to limitation on cost structure in builder's action on written cost-plus-fee construction contract, 84 A.L.R.2d 1324.
Admissibility of oral agreement as to specific time for performance where written contract is silent, 85 A.L.R.2d 1269.
Admissibility of oral agreement respecting duration of employment or agency where written contract is silent, 85 A.L.R.2d 1331.
Validity, construction, and effect of contract between grower of vegetable or fruit crops, and purchasing processor, packer, or canner, 87 A.L.R.2d 732.
Effect of attempt to terminate employment or agency contract upon shorter notice than that stipulated in contract, 96 A.L.R.2d 272.
Effect of stipulation, in private building or construction contract, that alterations or extras must be ordered in writing, 2 A.L.R.3d 620.
Insurer's acceptance of defaulted premium payment or defaulted payment on premium note, as affecting liability for loss which occurred during period of default, 7 A.L.R.3d 414.
Parol exception of fixtures from conveyance or lease, 29 A.L.R.3d 1441.
Statements in promotional or explanatory literature issued by lessor to lessee as ground for relief from lease contract, 43 A.L.R.3d 1386.
Private pension plans: statements in literature distributed to employees as controlling over provisions of general plan, 50 A.L.R.3d 1270.
Liability of subcontractor upon bond or other agreement indemnifying general contractor against liability for damage to person or property, 68 A.L.R.3d 7.
Application of parol evidence rule in action on contract for architect's services, 69 A.L.R.3d 1353.
Construction contract provision excusing delay caused by "severe weather,", 85 A.L.R.3d 1085.
Timeliness of notice of exercise of option to purchase realty, 87 A.L.R.3d 805.
Lease provisions allowing termination or forfeiture for violation of law, 92 A.L.R.3d 967.
Construction and application of provision in health or hospitalization policy excluding or postponing coverage of illness for which medical care or treatment was received within stated time preceding or following issuance of policy, 95 A.L.R.3d 1290.
Division of opinion among judges on same court or among other courts or jurisdictions considering same question, as evidence that particular clause of insurance policy is ambiguous, 4 A.L.R.4th 1253.
Liability for injury or damage caused by snowplowing or snow removal operations and equipment, 83 A.L.R.4th 5.
Liability for breach of employment severance agreement, 27 A.L.R.5th 1.