*1 and also of the de- testimony of the witness same or similar admitted in evidence respect to said incident was fendants Accordingly, the admission objection. without complained prejudicial not harmful testimony error. cases set forth under catchword “Same evidence” See under Code 70-203.
Judgment Whitman, JJ., Bell, J., P. Pannell affirmed. concur. ALBANY,
43019. COMPANY OF INC. FARM SUPPLY v. COOK.
Argued September 1967 Decided November Rehearing denied December *2 Jr., Chapman, G. Swift, Pease, Scrantom, Davidson W. & for Burt, appellant. Burt & Hilliard P. Burt, Lee, appellee. Lee Hitchcock, & William S. Judge. Code 20-701 has been now What
Eberhardt, every Code, first: “The of a con including the construсtion tract is a for the court. Where matter lawof (as reading obscurely fact is involved proper an written word), should find the fact.” It was the common law long rule before the first Code. A matter similar to an ob scurely written word is inclusion оf an unfamiliar abbrevia (1). Long tion. Holland v. Bro., Rules to applied in construing 20-704, contracts found in Code others may be found in of the decisions. some rule relative to the court to
The true *3 Co., is asserted Davis v. Amer. Ins. United 215 Ga. Life 488): (2) (111 ambiguous “Construction of contracts duty court, application is the of the it is and after thereto pertinent the rules of construction, they ambigu and remain ous, that explain ambigu extrinsic evidence is admissible to the ity.” To the same effect is McCann v. 669, it whеre was asserted that “[T]here ambiguity referred, be no within the rule to we which have application pertinent
unless until an and rules inter pretation really leaves it possible uncertain which of or more two meanings represеnts the parties.” true intention of the To state way, although it another there is in a contract it jury question raises no unless the remains unresolved after application of all applicable rules of This construction. applied rule was Corp. Carn, General Gas 542, judges all of the whole court concurring, save Chief Judge Felton, who dissented for another reason. merely possible
It does not follow that because there two might employed construing intеrpretations a contract jury. for If automatically the matter becomes a con- if rarely, ever, were true the court would that be. The role declares its as Code tract of a mere referee. If higher than that function of a court is role it is be- relegate it to tendency there has been a recognize apply the true rule which cause have failed to we Davis, supra. Court reasserted was, course, contracts for “The construction of the written though presented as to mean- court, factual issues were ing ambiguous terms, of certain technical words and such ” contract). drawings’ (in ‘pilot ‘shop house’ and a construction R. P. Co. v. Construction F2d Farnsworth Tri-State (CCA cert. den. Ga.), U. S. 941 SC LE2d here, and is to be pertinent rules
Now what are -making application? remaining ambiguity after surrounding circum- is the matter of attendant There and this court urged before the trial court stances, and the matter of a formеr lease given that consideration should had been exe- property, on the same between the had been terminated years previously and which cuted several in ques- The lease payments. in rental by the lessor default “suрersedes” former lease specifically provides that it tion wholly supplanting it, thus render- 19, 1950, executed December affecting rights ing removing it as a matter it obsolete longer effect, terms, no or its lease, former surrounding does not constitute “attendant and circumstances” “speak appear present nor lease does not does whole contract.” their and com- in the contract are be afforded usual
Words signification, they terms, mon unless are technical terms used *4 particular disagreement or here in- trade business. no or terms. The usual and volves technical trade words are given ordinary meaning. and ordinary ones, to be their usual Paragraph 7, the first sentencе of the amounts of rental In ground spelled out, viz., the lessor is receive are rent of to per per month month, additionally $100 and the first real- $150 percent monthly ized of all “from subleases and rentals 50 818 . .” The use of sub- any subleases.
realized over under $100 as the use of the word significant, as well plural leases in the $100 realized over referring to the division of rentals “all” in rentals realized over monthly “All per month from subleases. from all aggregate receipts subleases. refer to $100” provision additional clearly appear from the This is made addition to the paragraph requiring pay the lessee ground per month realized from sub- $100 rent “the first provision $100 leases,'” percent and of the excess. If 50 by lessor, per month as contended apply, were intended have been no limitation every each sublease would simple have been realized; $100 rather it would first easy every lease provision apply to have made the to each by adding after “the first realized from.” $100 those words But not so intended. was done and we cannot find that the in this “any” lessor contends as used While word every” means “each” or “each and we find this inconsistent with plural use of thе “subleases.” generally against less contracts are construed Lease substantially jurisdic all of the rule is or.1 This (51 Tenant, 232; Landlord 32 AmJur tions CJS put Tenant, 128), though we have been unable to Landlord & stating our hands on a case from either of the сourts in this State very However, applied by it in these words. it was Epping Devanny, 422; Reeves, v. Deich v. Court Ga. 203 28 (48 Ber by this court in Williams v. Ga. SE2d 596 Anchor Rome nath, App. (6 184); v. Ga. SE2d 61 350 Shiflett (50 Corp. Steward, v. Mills, App. Chelsea 78 Ga. SE2d 428 Fund, App. (62 and in Parkhill Trust 82 Ga. SE2d recog v. Carroll, App. Inc. SE2d It was 531) Wright, nized in Oastler appears supplied in a form ambiguous provision 1Unless in which event it is lessee, prepared lessee, by the Wilcox, it. Gibbs & party who drew to be Mfg. (2); King Hill v. John P. Owens, v.Co. 64 Ga. Fund, Carroll, Trust Inc. 445); Parkhill Ga. 105 SE Phillips Petroleum 615); Brooke v. App.
819 asserted that “in cases of doubt, where court in contests be be resolved favor tenants, tween landlords and issue will Gay Co., compare v. American Oil tenant.” And 115 (153 612). App. 18 jurisdictions holding where
Examples cases from other of to meaning provisions it is be re as to the doubt exists Paper Hoague- v. against lessor are: Mutual Co. solved (8 802); Dietrich v. Ezra Sprague Corp., Mass. NE2d 297 294 204). has (31 The rule Co., App. Ohio CA Smith 12 Ohio 243 dispute provisions, applied been there as to rental whеre calculating provi or as to the rentals under the lease method Parkway Bldg. interpretations being urged. sions—two South Corp. v. Ill. Co., Theatre 447 Amusement 328 Mfg. Realty 284 Sanitary Co., Standard Co. v. Hartfield 220). Mass. 540 NE around the dispute to rental “centеred
Where ambiguity,” than inherent extrinsic rather legal effect of words effect; unnecessary explain to was a was held Ave., by the court. Seventh Inc. v. matter for construction 455 761). Corp., NY NE2d Hussey Realty 295 166 Frederick corollary (5), a to thаt found in Code rule, Another power stipulations is that the lessor has the to control since go lease at the time of if the full intent drafting, into the Irving expressed fall on him. is not the loss must Brown Co., 385, affirmed S. SC Trust F2d 291 U. ambiguity or even in the uncertainty If there left LE lеase, favored, it is the lessee and not lessor who is to be power stipulating favor, had in his own because though may neglected (La. he have to do so. v. Martin Martin Breedlove, App.), Accord, Warren v. N. S 63. C. this connection observe it is SE2d. we asserted In in this case that the lease in was ne- lessor’s brief position strength” regard gotiated lessor “from its terms. courts have these rules Our grantor. Hull, Harris v. deeds 841. Applying Paragraph lease, of this them left as to what it must held mean? Wе think doubt not. as the and, is left unresolved Court has No pointed Davis v. Amer. Ins. out United Life supra, 669, supra, McCann nothing unless there remains an there is unresolved jury. submit to and declaration the mean- Construction *6 ing of the contract is of the the court. parties
Each of the trial court and in conceded before the court urging that the court lease—each his should construe the interpretation adopted doing. own in The did be so court it, adopting interpretation urged by the the lessor. In erred, this he apply apply hе failed in this the rules situation. interpretation rules of follow
Applying
applicable
the
must
interpretation
by
the
one
urged
the
correct
the
lessee
rendering judgment
favor of
erred in
in
the
the court
lessor.
Judgment
J.,
J.,
Pannell,
reversеd.
P.
Bell,
Jordan,
Hall,
P.
Quillian Whitman,
Deen,
JJ.,
Felton,
J.,
concur.
C.
dissents.
dissenting.
construction
Judge,
Chief
The
of a writ-
Felton,
question
court, except
ten contract is a
law for
of
the
when there
ambiguities
application
instrument,
the
after
the
the
of
rules of
ambiguity,
construction fails to resolve the
in which case
meaning
the
of
the uncertain terms is a
of
fact, to
by
jury
determined
a
the
accordance with the intention of
parties.
20-701, 20-702, 20-703;
Hall,
Code
Chambliss v.
§§
App. 96,
and cit. Parol
SE2d
as to
facts and
attending
the
circumstances
the making of the
contract is
ambiguous.
admissible
when the
contract
Code
20-701,
38-502,
(1),
38-505;
20-704
Irwin v. Young,
§§
Plaza
Co. v.
cit.;
Hotel
Fine Products
Corp.,
App 460,
The
existence of
tois
application
perti-
determined
after
of
nent rules
interpretation,
found in Code
20-704. McCann
§
of
Dorsey
Clements,
The of alone, not, through gymnastics the exercise of amount of verbal or of application interpretation, the rules of be so as eithеr support-the party construction of to the absolute exclu- interesting although sion of note that, of that the other. It unambiguous (with which the contract both consider urges agreed), party each proposition evidently trial court fact is additional meaning, a different and inconsistent ambiguity. indication of by contract, required as consideration the whole does a
Nor con- (4) urged defendant, support one by Code 20-704 although the other law, as matter оf struction over another proper evidence, may contract, along of the with determining intention be considered Although not arise problem construction would either two sublease, where was but one one tract at all certain to the in- combined, tracts the contract is not existing situation, tended division rentals wherein two separate subleases are involved. party as to most strongly rule construction apply
executing instrument, (5), Code does not present Although supporting case. affidavit his plaintiff’s *7 judgment alleges pre- motion for summary the lease was pared by subject attorney, was, nevertheless, defendant’s negotiation by attorneys parties. for both as to tracts twо and expression “under subleases (1) constructions. It can mean susceptible three” to several (2) it mean what the lessee lessor contends or could what the of Tracts assuming only separate one contends, mean thаt the contract was in- contemplated; and it could was separate lease Tracts 2 and tended to cover more than one clothed in which latter case it with same would of- a as stated above. case built-in This majority will resolve. The none of the rules of construction (plural) whereas it com- opinion stresses the use subleases appears next before pletely ignores the use of the word against a The rule of construction lеssor the word subleases. theory is based on the controls the case is not fact as the contract contract. This subject negotiation The fact that between negotiation necessary does affect they did not think not did not control terms of the truth of the fact that the lessor contract. ambiguous, contract was it should be submitted to
Since by any proper meaning, for a determination of its aided evi- might adduced. dence which et al. v.
43041. PEACOCK CONSTRUCTION COMPANY CONCRETE, TURNER INC.
Argued September 1967' Decided November Rehearing denied December