113 Ga. App. 742 | Ga. Ct. App. | 1966
This is an appeal from the. order of the trial court granting the defendant lessee’s motion for summary judgment in an action brought by the plaintiff lessor to recover damages arising out of the defendant’s cancellation of the lease agreement between the parties. The record before the court on consideration of the motion disclosed that the plaintiff lessor entered into a lease contract with Tri Oil, Inc., as lessee, dated October 18, 1955, for a term of ten years beginning on November 1, 1955, and ending on October 31, 1965, at a rate of rental of $210.61 per month; that on January 9, 1962, Tri Oil, Inc., with the consent of the plaintiff transferred and assigned its rights
The record further disclosed that on December 11, 1964, the defendant gave notice of its intention to cancel the lease as of April 1, 1965; that as of the effective date of cancellation, April 1, 1965, seven monthly loan payments of $159.10 each and totaling $1,113.70 had not accrued according to schedule of payments or amortization plan of the loan; that the loan itself had been fully paid and discharged as of November 27, 1962, because of the fact that the plaintiff lessor had voluntarily applied the monthly lease receipts of $210.61 to the loan rather than making the scheduled payments of $159.10; that the plaintiff upon receipt of the defendant’s notice of cancellation demanded payment of the sum of $1,113.70 as representing the unamortized balance of the original contract loan provided for in the lease agreement as consideration for the defendant’s privilege of terminating the lease agreement; and that the defendant refused to pay this sum in spite of repeated demands by the plaintiff.
The trial court in granting a summary judgment in favor of the defendant lessee held that since the loan had been extinguished as of November 27, 1962, by the voluntary payments of the plaintiff lessor, there was no unamortized balance of the loan as of the effective date of cancellation of the lease, April 1, 1965, and that therefore no consideration was due the plaintiff by the defendant, for the privilege of canceling the lease.
“The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction.” Code § 20-702. “Every other rule is subservient to this one. ‘The fundamental rule, the rule which swallows up almost all others in construing a paper, is to give it that meaning which will best carry into effect the intent of the parties. This is the object of the rules of interpretation, to discover the true intent of the parties, and in doing this we are to take the whole of [the instrument] together, and to consider this with the surrounding circumstances.’ ” Bridges v. Home Guano Co., 33 Ga. App. 305, 309 (125 SE 872). In ascertaining the intent, “that construction will be favored which gives meaning and effect to all of the terms of the contract over that which nullifies and renders meaningless a part of the language therein contained” (Burch v. Ragan, 92 Ga. App. 605, 607 (89 SE2d 541); Code § 20-704 (4)), and in cases of doubt, the contract will be construed most strongly against the one who prepared the instrument. Code § 20-704 (5); Benevolent Burial Assoc., Inc. v. Harrison, 181 Ga. 230, 239 (181 SE 829); Howkins v. Atlanta Baggage & Cab Co., 107 Ga. App. 38 (1) (129 SE2d 158).
The trial court in granting the defendant lessee’s motion for summary judgment held in effect that the term “Unamortized balance” referred to the actual unpaid balance of the loan; and in so holding we do not think that proper effect was given to
The amortization plan of the loan provided a reasonable, predetermined and simple formula for determining the consideration to be paid at any given time in the future by the lessee for the privilege of canceling the lease agreement and its use as the basis of computation would also fully protect the lessor in the investment which he was required to make in order to improve the property as required by the lease and would at the same time protect the lessee in that the lessor could not apply the lease receipts to some other purpose, allow the loan payments to be in arrears and thus increase the consideration which the lessee would have to pay in order to terminate the lease agreement. To construe this contract otherwise, would require nullifi
It is immaterial therefore that the loan had in fact been extinguished at the time of cancellation by the lessee because of the voluntary prepayment by the lessor since seven unaccrued monthly payment periods remained under the amortization plan of the loan; and the judgment of the trial court granting the defendant’s motion for summary judgment must be reversed.
Judgment reversed.