O.C.G.A. § 13-2-3 (2019)

Annotations

Law reviews. - For article, ‘‘Limitations on the Meaning and Impact of DeGarmo v. DeGarmo,’’ see 4 Ga. St. B.J. 20 (1998). For comment advocating liberal construction of indefinite employment contract, in light of Gray v. Aiken, 205 Ga. 649, 54 S.E.2d

587 (1949), see 1 Mercer L. Rev. 304 (1950). For comment on Rose City Foods, Inc. v. Bank of Thomas County, 207 Ga. 477, 62 S.E.2d 145 (1950), see 13 Ga. B.J. 471 (1951).

JUDICIAL DECISIONS Analysis General Consideration Ascertaining Intent of Parties Validating Construction Preferred Application General Consideration Intent of parties is cardinal rule of construction. - All agreements should be determined according to the usual rules for the construction of contracts; the cardinal rule in construing contracts is to ascertain the intention of the parties. Crawford v. Crawford, 158 Ga. App. 187, 279 S.E.2d 486 (1981). After applying the rules of contract construction under O.C.G.A. §§ 13-2-2 and 13-2-3, summary judgment to a lessee was proper 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, it 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). When cardinal rule applicable. - ‘‘Cardinal rule of construction’’ becomes applicable only upon determination that contract is ambiguous. Smith v. Freeport Kaolin Co., 687 F. Supp. 1550 (M.D. Ga. 1988). Meeting of minds necessary. - A binding contract must be predicated upon a meeting of the minds. Dumas v. First Fed. Sav. & Loan Ass’n, 654 F.2d 359 (5th Cir. 1981). Statute paramount to almost all other rules of construction. - Fundamental rule, which takes priority over almost all others in construing a contract, is to give the contract that meaning which will best carry into effect intent of parties. Paul v. Paul, 235 Ga. 382, 219 S.E.2d 736 (1975). Cardinal rule of construction, both at common law and under our code, is, that instruments containing conditions, limita-

tions, and restrictions are to be construed in each case in such way as to carry into effect intent of parties as gathered from instrument as a whole. Emphasis is laid upon fact that technical rules of construction are to be disregarded when obedience to such rules would defeat intention of parties. Wadley Lumber Co. v. Lott, 130 Ga. 135, 60 S.E. 836 (1908). Although there may be special rules of interpretation which would require that pledge contract be construed favorably to pledgor, or to maker of one of notes so pledged, and strictly against pledgee, ultimate and final criterion, as in all cases, is that real object of court should be to ascertain intention of parties; and that where such intention is clear and contravenes no rule of law, and sufficient words are used to arrive at intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction. Deen v. Bank of Hazlehurst, 39 Ga. App. 633, 147 S.E. 909 (1929). Every other rule is subservient to this one. Shorter v. Methvin, 52 Ga. 225 (1874); Bridges v. Home Guano Co., 33 Ga. App. 305, 125 S.E. 872 (1924); Paul v. Paul, 235 Ga. 382, 219 S.E.2d 736 (1975). Parties cannot by contract provision prevent construction in accordance with applicable laws. - Parties to a contract cannot by way of provision prevent interpretation of contract by courts in accordance with law applicable thereto. McKie v. McKie, 213 Ga. 582, 100 S.E.2d 580 (1957). Where terms and conditions are left to future negotiations, the requisite meeting of the minds is absent and no contract is formed. Dumas v. First Fed. Sav. & Loan Ass’n, 654 F.2d 359 (5th Cir. 1981). No agreement where parties contemplate that instrument is incomplete. - To be final an agreement must comprise all the terms which the parties intend to introduce in the agreement. If it is evident from a written instrument that the parties contemplated that it was incomplete, and that a binding agreement would be made subsequently, there is no agreement. Hartrampf v. Citizens & S. Realty Investors, 157 Ga. App. 879, 278 S.E.2d 750 (1981). If intention is clear and contract contravenes no rule of law, contract will be enforced according to the contract’s terms. Budd Land Co. v. K & R Realty Co., 159 Ga.

App. 448, 283 S.E.2d 665 (1981). Test of enforceability. - For a contract to be enforceable, the minds of the contracting parties must be in such agreement on the subject matter upon which the contract purports to operate that either party might support an action thereon. Hartrampf v. Citizens & S. Realty Investors, 157 Ga. App. 879, 278 S.E.2d 750 (1981). Section applicable to conveyances of land. - There can be no good reason why provisions of this statute should not apply to conveyances of land. Woodson v. Veal, 60 Ga. 562 (1878). Section applicable to insurance contracts. - A policy of life insurance is a contract. Cardinal rule for construction of which is to ascertain intention of parties. 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). Contracts of insurance, like other contracts, are subject to rule of law that intention of parties must be ascertained. American Cas. Co. v. Fisher, 195 Ga. 136, 23 S.E.2d 395 (1942). A contract of insurance is construed to carry out intent of parties. Morris v. Mutual Benefit Life Ins. Co., 258 F. Supp. 186 (N.D. Ga. 1966). Insurance policies in Georgia are governed by the ordinary rules of construction. Chicago Title Ins. Co. v. Citizens & S. Nat’l Bank, 821 F. Supp. 1492 (N.D. Ga. 1993), aff ’d, 20 F.3d 1175 (11th Cir. 1994). Construction of unambiguous insurance contract is for court, main purpose being ascertaining parties’ intent. - An insurance policy is simply a contract, the provisions of which should be construed as any other type of contract, and the construction of an unambiguous contract is a question of law for the court, with the cardinal rule of construction being to ascertain the intention of the parties. Mutual Life Ins. Co. v. Davis, 79 Ga. App. 336, 53 S.E.2d 571 (1949). Alimony settlement between spouses subject to usual rules of construction, object being to ascertain intent. - When 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, cardinal rule being to ascertain intention of

General Consideration (Cont’d) parties. Brown v. Farkas, 195 Ga. 653, 25 S.E.2d 411 (1943). 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) and 13-2-3 supported that interpretation of the agreement. Crosby v. Lebert, 285 Ga. 297, 676 S.E.2d 192 (2009). Contract, made part of divorce decree, providing for children’s education, enforceable. - Contract which is later made part of divorce decree, providing for college education for child or children of divorced couple, would not be illegal but would be given full force and effect. Goodrum v. Fuller, 237 Ga. 833, 229 S.E.2d 639 (1976). Interpretation of language in contract is generally question of law for court unless it is so ambiguous that ambiguity cannot be resolved by ordinary rules of construction. Garner v. Metropolitan Life Ins. Co., 152 Ga. App. 242, 262 S.E.2d 544 (1979). If language is plain, unambiguous, and capable of only one reasonable interpretation, no other construction is permissible. Reuss v. Time Ins. Co., 177 Ga. App. 672, 340 S.E.2d 625 (1986). When language unambiguous and only one reasonable construction possible, court must expound it as made. Cutledge v. Aetna Life Ins. Co., 53 Ga. App. 473, 186 S.E. 208 (1936). When contracts are unambiguous, it is error to submit the contract’s construction to jury. State Hwy. Dep’t v. MacDougald Constr. Co., 102 Ga. App. 254, 115 S.E.2d 863 (1960). Disagreement as to intent of parties is an 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). Contract construction not for jury unless intent uncertain after application of rules of construction. - Construction of contract, if needed, being a question of law for court, as well as a duty that rests upon the court, there can be no ambiguity so as to require submission to a jury, unless and until an application of pertinent rules of interpretation leaves it really uncertain which of two or more possible meanings represents true intention of parties. Goff v. Cooper, 110 Ga. App. 339, 138 S.E.2d 449 (1964). Construction of contract, if needed, being a question of law for court, as well as a duty that rests upon the court, there can be no ambiguity within rules as to admission of parol evidence to explain the contract’s meaning unless and until application of pertinent rules of interpretation leaves it really uncertain which of two or more possible meanings represents true intention of parties. Maddox v. Life & Cas. Ins. Co., 79 Ga. App. 164, 53 S.E.2d 235 (1949), overruled on other grounds, Etheridge v. Woodmen of World Life Ins. Soc’y, 114 Ga. App. 807, 152 S.E.2d 773 (1966). Courts to construe and enforce contracts as made, rather than make contracts for parties. Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974). Court is not at liberty to revise contract while professing to construe a contract. Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974). Terms of contract to extend only to matters as to which parties intended to contract. - No matter how broad or how general terms of contract may be, it will extend only to those matters with reference to which parties intended to contract. Carter v. Marble Prods., Inc., 171 Ga. 49, 154 S.E. 891 (1930). In construing contracts, the fundamental rule is to ascertain and give effect to intention of parties. State Hwy. Dep’t v. Knox-Rivers Constr. Co., 117 Ga. App. 453, 160 S.E.2d 641 (1968). Intention of parties is prevailing consideration in construction of contracts. Burden v. Thomas, 104 Ga. App. 300, 121 S.E.2d 684 (1961). If intention of parties at time of executing agreement is clear, the parties intent should

be enforced, even though parties disagree as to the agreement’s meaning at time of litigation. Paul v. Paul, 235 Ga. 382, 219 S.E.2d 736 (1975). When main purpose of contract can be enforced, it will be given effect. Southern Airways Co. v. DeKalb County, 102 Ga. App. 850, 118 S.E.2d 234 (1960). Intention, when ascertained, to prevail over all other considerations in determining nature of agreement. Goff v. Cooper, 110 Ga. App. 339, 138 S.E.2d 449 (1964). Greater regard to be afforded clear intent of parties than to any particular words which the parties may have used in expression of the parties’ intent. Carter v. Marble Prods., Inc., 171 Ga. 49, 154 S.E. 891 (1930). When main purpose clear, ambiguity of collateral undertakings will not affect enforceability of contract. - When main purpose clearly appears to have been giving of usufruct of airport by defendant to plaintiff, while there may be some ambiguity as to collateral undertakings, even if these should be found to be indefinite rather than ambiguous and thus unenforceable, they will not affect enforceability of contract, but only that of collateral agreements. Southern Airways Co. v. DeKalb County, 102 Ga. App. 850, 118 S.E.2d 234 (1960). Clear intention to be given effect regardless of mere literal repugnancies among clauses. - In construction of deeds, as well as other contracts, paramount, essential, and controlling rule is to ascertain intention of parties. If that intention is plain from language of deed, as a whole, and intention contravenes no rule of law, it should be given effect regardless of mere literal repugnancies in different clauses of conveyance. Thurmond v. Thurmond, 88 Ga. 182, 14 S.E. 198 (1891); Keith v. Chastain, 157 Ga. 1, 121 S.E. 233 (1923). See also Gilreath v. Garrett, 139 Ga. 688, 77 S.E. 1127 (1913). Intent to be effectuated, although contract affects rights of strangers. - Contracts, even where rights of strangers are affected, will nevertheless be construed so as to effect manifest intention of contracting parties, when such construction contravenes no rule of law. Brooks v. Folds, 33 Ga. App. 409, 126 S.E. 554 (1925). Intent to be ascertained and given effect whenever possible, even though instrument unskillfully prepared. - However unskill-

fully deed may be prepared, it is duty of courts to discover and give effect, if possible, to intent of parties. Skinner v. Bearden, 77 Ga. App. 325, 48 S.E.2d 574 (1948). Mere clerical error not affecting relations of parties is relievable at law. - Any mistake in contract, consisting of some unintentional act or omission, and manifestly a mere clerical error, in no sense changing contract or relations of parties thereto, is relievable at law, and there is no necessity to resort to a court of equity for purpose of reforming contract. Gaulding v. Baker, 9 Ga. App. 578, 71 S.E. 1018 (1911). Parties may provide for alternative forms of payment for realty if sufficiently definite for enforcement. - There is nothing inherently vague or improper in providing for alternative forms of payment in contract to sell realty as long as each alternative is sufficiently definite to be enforced. Rhyne v. Garfield, 236 Ga. 694, 225 S.E.2d 43 (1976). Whether contract is one of suretyship or of guaranty, is governed by intention of parties. Baggs v. Funderburke, 11 Ga. App. 173, 74 S.E. 937 (1912); McKibben v. Fourth Nat’l Bank, 32 Ga. App. 222, 122 S.E. 891 (1924). Cited in Wellborn v. Estes, 70 Ga. 390 (1883); Gilreath v. Garrett, 139 Ga. 688, 77 S.E. 1127 (1913); United Cigar Stores Co. v. Mckenzie, 140 Ga. 270, 78 S.E. 1006 (1913); Mill Wood & Coal Co. v. Flint River Cypress Co., 16 Ga. App. 636, 85 S.E. 943 (1915); Kiker v. Jones, 20 Ga. App. 704, 93 S.E. 253 (1917); Adams v. Walker, 24 Ga. App. 646, 101 S.E. 815 (1920); Horne & Ponder v. Evans, 31 Ga. App. 370, 120 S.E. 787 (1923); Miller v. First Nat’l Bank, 35 Ga. App. 334, 132 S.E. 783 (1926); Hill v. Smith, 163 Ga. 71, 135 S.E. 423 (1926); Lanier v. Register, 163 Ga. 236, 135 S.E. 719 (1926); Motors Mtg. Corp. v. Purchase-Money Note Co., 38 Ga. App. 222, 143 S.E. 459 (1928); Atlanta & Lawry Nat’l Bank v. First Nat’l Bank, 38 Ga. App. 768, 145 S.E. 521 (1928); Carter v. Marble Prods., Inc., 171 Ga. 49, 154 S.E. 891 (1930); Northwestern Mut. Life Ins. Co. v. Dean, 43 Ga. App. 67, 157 S.E. 878 (1931); Buffalo Forge Co. v. Southern Ry., 43 Ga. App. 445, 159 S.E. 301 (1931); Shaw v. Musgrove, 175 Ga. 806, 166 S.E. 196 (1932); Henry & Co. v. Johnson, 178 Ga. 541, 173 S.E. 659 (1934); Tyus v. Duke, 178 Ga. 800, 174 S.E. 527 (1934); Taber Mill v. Southern

General Consideration (Cont’d) Brighton Mills, 49 Ga. App. 390, 175 S.E. 665 (1934); Simmons v. Hall, 180 Ga. 492, 179 S.E. 98 (1935); Mitchell v. Federal Life Ins. Co., 57 Ga. App. 206, 194 S.E. 921 (1938); Trippe v. Crescent Farms, Inc., 58 Ga. App. 1, 197 S.E. 330 (1938); Beavers v. Le Sueur, 188 Ga. 393, 3 S.E.2d 667 (1939); Finn v. Dobbs, 188 Ga. 602, 4 S.E.2d 655 (1939); Daughtry v. Cobb, 189 Ga. 113, 5 S.E.2d 352 (1939); Armistead v. City of Atlanta, 61 Ga. App. 831, 7 S.E.2d 409 (1940); In re Cent. of Ga. Ry., 47 F. Supp. 786 (S.D. Ga. 1942); Hall v. Browning, 71 Ga. App. 835, 32 S.E.2d 424 (1944); Robinson v. Washington Nat’l Ins. Co., 72 Ga. App. 19, 32 S.E.2d 855 (1945); Etheridge v. Gillen, 199 Ga. 242, 34 S.E.2d 105 (1945); McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945); Wood v. Claxton, 199 Ga. 809, 35 S.E.2d 455 (1945); Hoffman v. Louis L. Battey Post No. 4 of Am. Legion, 74 Ga. App. 403, 39 S.E.2d 889 (1946); Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783 (1947); Russell v. Smith, 77 Ga. App. 70, 47 S.E.2d 772 (1948); Sampson v. General Elec. Supply Corp., 78 Ga. App. 2, 50 S.E.2d 169 (1948); Shippen v. Georgia Better Foods, Inc., 79 Ga. App. 813, 54 S.E.2d 704 (1949); Garden City Cab Co. v. Fidelity & Cas. Co., 80 Ga. App. 850, 57 S.E.2d 683 (1950); Blanchard & Calhoun Realty Co. v. Fogel, 207 Ga. 602, 63 S.E.2d 382 (1951); Sachs v. Jones, 83 Ga. App. 441, 63 S.E.2d 685 (1951); Ramsay v. Sims, 209 Ga. 228, 71 S.E.2d 639 (1952); Moore v. Johnson, 89 Ga. App. 164, 78 S.E.2d 823 (1953); Sawan, Inc. v. American Cyanamid Co., 211 Ga. 764, 88 S.E.2d 152 (1955); American Aviation & Gen. Ins. Co. v. Georgia Telco Credit Union, 223 F.2d 206 (5th Cir. 1955); Pilot Life Ins. Co. v. Morgan, 94 Ga. App. 394, 94 S.E.2d 765 (1956); Smith v. Aggregate Supply Co., 214 Ga. 20, 102 S.E.2d 539 (1958); Trust Co. v. S. & W. Cafeteria, 97 Ga. App. 268, 103 S.E.2d 63 (1958); West End Cab Co. v. Stovall, 98 Ga. App. 724, 106 S.E.2d 810 (1958); Nikas v. Hindley, 99 Ga. App. 194, 108 S.E.2d 98 (1959); Dyal v. Union Bag-Camp Paper Corp., 263 F.2d 387 (5th Cir. 1959); Bridges v. Bridges, 216 Ga. 808, 120 S.E.2d 180 (1961); Gulbenkian v. Patcraft Mills, Inc., 104 Ga. App. 102, 121 S.E.2d 179 (1961); National Life & Accident Ins. Co. v. Wilson, 106 Ga. App. 504, 127

S.E.2d 306 (1962); King v. King, 218 Ga. 534, 129 S.E.2d 147 (1962); Liberty Mut. Ins. Co. v. Mead Corp., 219 Ga. 6, 131 S.E.2d 534 (1963); Moore v. Allstate Ins. Co., 108 Ga. App. 60, 131 S.E.2d 834 (1963); Johnson v. Atlanta Auto Auction, Inc., 108 Ga. App. 735, 134 S.E.2d 538 (1963); Henson v. Airways Serv., Inc., 220 Ga. 44, 136 S.E.2d 747 (1964); Peacock Constr. Co. v. West, 111 Ga. App. 604, 142 S.E.2d 332 (1965); Davis v. Ford, 112 Ga. App. 175, 144 S.E.2d 456 (1965); Holland v. Holland, 221 Ga. 418, 144 S.E.2d 753 (1965); Chambliss v. Hall, 113 Ga. App. 96, 147 S.E.2d 334 (1966); Louisville & N.R.R. v. Central of Ga. Ry., 113 Ga. App. 808, 149 S.E.2d 730 (1966); Village Enters., Inc. v. Georgia R.R. Bank & Trust Co., 117 Ga. App. 773, 161 S.E.2d 901 (1968); Kraft Foods v. Disheroon, 118 Ga. App. 632, 165 S.E.2d 189 (1968); Robert & Co. Assocs. v. Pinkerton & Laws Co., 120 Ga. App. 29, 169 S.E.2d 360 (1969); Tudor v. American Employers Ins. Co., 121 Ga. App. 240, 173 S.E.2d 403 (1970); Hardee’s Food Sys. v. Bowers, 121 Ga. App. 316, 173 S.E.2d 439 (1970); Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883, 176 S.E.2d 103 (1970); Lovable Co. v. Honeywell, Inc., 431 F.2d 668 (5th Cir. 1970); Lunsford v. State Nat’l Sec., Inc., 124 Ga. App. 804, 186 S.E.2d 320 (1971); Ranger Ins. Co. v. Culberson, 454 F.2d 857 (5th Cir. 1971); Continental Cas. Co. v. Continental Rent-A-Car of Ga., Inc., 349 F. Supp. 666 (N.D. Ga. 1972); Redman Dev. Corp. v. Piedmont Heating & Air Conditioning, Inc., 128 Ga. App. 447, 197 S.E.2d 167 (1973); Twisdale v. Georgia R.R. Bank & Trust Co., 129 Ga. App. 18, 198 S.E.2d 396 (1973); Southeastern Fid. Ins. Co. v. Fluellen, 128 Ga. App. 877, 198 S.E.2d 407 (1973); Carsello v. Touchton, 231 Ga. 878, 204 S.E.2d 589 (1974); Pitman v. Griffeth, 131 Ga. App. 489, 206 S.E.2d 115 (1974); Crosby v. Bloomfield Developers, Inc., 232 Ga. 733, 208 S.E.2d 789 (1974); Rodgers v. Rodgers, 234 Ga. 463, 216 S.E.2d 322 (1975); Yancey Bros. Co. v. Sure Quality Framing Contractors, 135 Ga. App. 465, 218 S.E.2d 142 (1975); Nationwide Mut. Fire Ins. Co. v. Collins, 136 Ga. App. 671, 222 S.E.2d 828 (1975); Lindgren v. Dowis, 236 Ga. 278, 223 S.E.2d 682 (1976); Cincinnati Ins. Co. v. Gwinnett Furn. Mart, Inc., 138 Ga. App. 444, 226 S.E.2d 283 (1976); Indian Trail Village, Inc. v. Smith, 139 Ga. App. 691, 229 S.E.2d

508 (1976); Henderson Mill, Ltd. v. McConnell, 237 Ga. 807, 229 S.E.2d 660 (1976); Hemphill v. Taff, 242 Ga. 212, 248 S.E.2d 621 (1978); General Fin. Corp. v. Sprouse, 577 F.2d 989 (5th Cir. 1978); Glenn v. Maddux, 149 Ga. App. 158, 253 S.E.2d 835 (1979); Russell v. Fulton Nat’l Bank, 247 Ga. 556, 276 S.E.2d 641 (1981); Barkley-Cupit Enters., Inc. v. Equitable Life Assurance Soc’y, 157 Ga. App. 138, 276 S.E.2d 650 (1981); Lennon v. Aeck Assocs., 157 Ga. App. 294, 277 S.E.2d 289 (1981); Alley v. Great Am. Ins. Co., 160 Ga. App. 597, 287 S.E.2d 613 (1981); O.H. Carter Co. v. Buckner, 160 Ga. App. 627, 287 S.E.2d 636 (1981); Merrill Lynch, Pierce, Fenner & Smith v. Stidham, 506 F. Supp. 1182 (M.D. Ga. 1981); Head v. Hook, 248 Ga. 818, 285 S.E.2d 718 (1982); Southern Fed. Sav. & Loan Ass’n v. Lyle, 249 Ga. 284, 290 S.E.2d 455 (1982); City of Acworth v. John J. Harte Assocs., 165 Ga. App. 438, 301 S.E.2d 499 (1983); Rodgers v. Georgia Tech Athletic Ass’n, 166 Ga. App. 156, 303 S.E.2d 467 (1983); Saf-T-Green of Atlanta, Inc. v. Lazenby Sprinkler Co., 169 Ga. App. 249, 312 S.E.2d 163 (1983); Willis v. Farmers Fertilizer & Milling Co., 172 Ga. App. 610, 323 S.E.2d 829 (1984); 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); Milner v. Bivens, 255 Ga. 49, 334 S.E.2d 288 (1985); Hubert v. Turner Outdoor Adv., Ltd., 178 Ga. App. 789, 344 S.E.2d 542 (1986); Capital Ford Truck Sales, Inc. v. United States Fire Ins. Co., 180 Ga. App. 413, 349 S.E.2d 201 (1986); Wilson v. Southern Gen. Ins. Co., 180 Ga. App. 589, 349 S.E.2d 544 (1986); McClintock v. Wellington Trade, Inc., 187 Ga. App. 898, 371 S.E.2d 893 (1988); Giddens Constr. Co. v. Fickling & Walker Co., 188 Ga. App. 558, 373 S.E.2d 792 (1988); Ouseley v. Foss, 188 Ga. App. 766, 374 S.E.2d 534 (1988); Holyoke Mut. Ins. Co. v. Cherokee Ins. Co., 192 Ga. App. 757, 386 S.E.2d 524 (1989); Rustin v. State, 192 Ga. App. 775, 386 S.E.2d 535 (1989); Buckeye Cellulose Corp. v. Sutton Constr. Co., 907 F.2d 1090 (11th Cir. 1990); McDowell v. Lackey, 200 Ga. App. 506, 408 S.E.2d 481 (1991); Progressive Preferred Ins. Co. v. Brown, 261 Ga. 837, 413 S.E.2d 430 (1992); Gray v. Higgins, 205 Ga. App. 52, 421 S.E.2d

341 (1992); Robert Half of Atlanta, Inc. v. Diversitech Corp., 208 Ga. App. 427, 430 S.E.2d 800 (1993); Hamilton v. Advance Leasing & Rent-A-Car, Inc., 208 Ga. App. 848, 432 S.E.2d 559 (1993); Donohue v. Green, 209 Ga. App. 381, 433 S.E.2d 431 (1993); Klein v. Williams, 212 Ga. App. 39, 441 S.E.2d 270 (1994); Watson v. Union Camp Corp., 861 F. Supp. 1086 (S.D. Ga. 1994); Westminster Group, Inc. v. Perimeter 400 Partners, 218 Ga. App. 293, 460 S.E.2d 827 (1995); Bituminous Cas. Corp. v. Advanced Adhesive Tech., Inc., 73 F.3d 335 (11th Cir. 1996); Park ’N Go of Ga., Inc. v. United States Fid. & Guar. Co., 266 Ga. 787, 471 S.E.2d 500 (1996); Johnson v. Oconee State Bank, 226 Ga. App. 617, 487 S.E.2d 369 (1997); Loyal v. Norfolk S. Corp., 234 Ga. App. 716, 507 S.E.2d 499 (1998); Dunn v. Royal Maccabees Life Ins. Co., 242 Ga. App. 903, 531 S.E.2d 761 (2000); Presidential Fin. Corp. v. Francis A. Bonanno, Inc., 244 Ga. App. 430 (2000); Malcom v. Newton County, 244 Ga. App. 464, 535 S.E.2d 824 (2000); BellSouth Telecomms., Inc. v. MCImetro Access Transmission Servs., 97 F. Supp. 2d 1363 (N.D. Ga. 2000); Tucker Materials, Inc. v. Devito Contracting & Supply, Inc., 245 Ga. App. 309, 535 S.E.2d 858 (2000); Fontaine v. Sidelines IV, Inc., 245 Ga. App. 681, 538 S.E.2d 137 (2000); Choate Constr. Co. v. Ideal Elec. Contractors, 246 Ga. App. 626, 541 S.E.2d 435 (2000); Booker v. Hall, 248 Ga. App. 639, 548 S.E.2d 391 (2001); Balata Dev. Corp. v. Reed, 249 Ga. App. 528, 548 S.E.2d 668 (2001); Pfeiffer v. Georgia 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); AMB Property, L.P. v. MTS, Inc., 250 Ga. App. 513, 551 S.E.2d 102 (2001); Hibbard v. P.G.A., Inc., 251 Ga. App. 68, 553 S.E.2d 371 (2001); Emanuel Tractor Sales, Inc. v. DOT, 257 Ga. App. 360, 571 S.E.2d 150 (2002); Weed Wizard Acquisition Corp. v. A.A.B.B., Inc., 201 F. Supp. 2d 1252 (N.D. Ga. 2002); Eckerd Corp. v. Alterman Real Estate, Ltd., 266 Ga. App. 860, 598 S.E.2d 510 (2004); Adeduntan v. Hosp. Auth. of Clarke County, No. 3:04-CV-65 (CDL), 2005 U.S. Dist. LEXIS 18281 (M.D. Ga. Aug. 25, 2005); Hardnett v. Ogundele, 291 Ga. App. 241, 661 S.E.2d 627 (2008); IP Co., LLC v. Cellnet Tech., Inc., No. 1:06-CV-03048-JEC, 2008 U.S. Dist. LEXIS 55222 (N.D. Ga. July 17,

General Consideration (Cont’d) 2008); General Steel, Inc. v. Delta Bldg. Sys., 297 Ga. App. 136, 676 S.E.2d 451 (2009); Owners Ins. Co. v. Smith Mech. Contrs., Inc., 285 Ga. 807, 683 S.E.2d 599 (2009). Ascertaining Intent of Parties Contract free from ambiguity is conclusively presumed to express intention of parties. National Manufacture & Stores Corp. v. Dekle, 48 Ga. App. 515, 173 S.E. 408 (1934). Ambiguity in contract is resolved by determining intention of parties, which is question for jury. Roberts v. Employers Ins. Co., 79 Ga. App. 611, 54 S.E.2d 465 (1949). Substantial purpose of contract to be looked to rather than details for effectuating such purpose. - In construing contracts, it is important to look to substantial purpose which must be supposed to have influenced minds of parties, rather than at details of making such purpose effectual. Illges v. Dexter, 77 Ga. 36 (1886). In ascertaining the intent of the parties, the court should ascertain the parties’ intent after considering the whole agreement and interpret each of the provisions so as to harmonize with the others; in construing contracts, it is important to look to the substantial purpose which must be supposed to have influenced the minds of the parties, rather than at the details of making such purpose effectual. Friedman v. Friedman, 259 Ga. 530, 384 S.E.2d 641 (1989), overruled on other grounds, 268 Ga. 566, 492 S.E.2d 201 (1997). Intention of parties is determined from consideration of entire contract. Spooner v. Dykes, 174 Ga. 767, 163 S.E. 889 (1932); Romine, Inc. v. Savannah Steel Co., 117 Ga. App. 353, 160 S.E.2d 659 (1968). Entire writing is to be taken into consideration in ascertaining intent of parties and, if the intention can be ascertained, that intention should govern. Indian Trail Village, Inc. v. Smith, 152 Ga. App. 301, 262 S.E.2d 581 (1979). In construction of contract, cardinal rule is to ascertain intention of parties, and to this end the whole contract must be considered. Hull v. Lewis, 180 Ga. 721, 180 S.E. 599 (1935). Two Chapter 13 debtors’ objection to a creditor’s claim, which lumped both a se-

cured 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, No. 04-54126-JDW, 2005 Bankr. LEXIS 3139 (Bankr. M.D. Ga. Aug. 8, 2005). Language of contract should be construed in its entirety, and should receive reasonable construction, and not be extended beyond what is fairly within the contract’s terms. Cutledge v. Aetna Life Ins. Co., 53 Ga. App. 473, 186 S.E. 208 (1936). Language used by parties is of primary consideration in determining intention. Romine, Inc. v. Savannah Steel Co., 117 Ga. App. 353, 160 S.E.2d 659 (1968). Language which parties have used will be looked to for purpose of finding the parties’ intention. Goff v. Cooper, 110 Ga. App. 339, 138 S.E.2d 449 (1964). In determining intention of parties courts must first look to language of instrument and, if that language is clear, courts need look no further in ascertaining such intention. Undercofler v. Whiteway Neon Ad, Inc., 114 Ga. App. 644, 152 S.E.2d 616 (1966). To ascertain intent, court to take whole instrument together and consider with surrounding circumstances. - Contract to be construed as a whole, and in light of law and circumstances. Oakland Motor Car Co. v. Rippey Motor Co., 41 Ga. App. 784, 154 S.E. 823 (1930). Fundamental rule is to give instrument that meaning which will best carry into effect intent of parties. In doing this the 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). To carry into effect intent of parties is object of rules of interpretation, and in doing this, court is to take whole of instru-

ment together and to consider this with surrounding circumstances. Paul v. Paul, 235 Ga. 382, 219 S.E.2d 736 (1975). Language and facts and circumstances surrounding contract’s execution considered in ascertaining intent. - 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). All contracts are to be construed according to intention of parties, and that intention is to be arrived at by consideration of wording employed in contract in connection with all facts and circumstances surrounding parties at time of making of contract. Griffin v. Burdine, 89 Ga. App. 391, 79 S.E.2d 562 (1953). Conduct as evidence of intent. - Where two individuals moved into the premises during the term of the former occupant’s lease and the landlord openly elected to acknowledge the individuals as tenants occupying under the lease, at that point all became bound by the lease even though the landlord did not sign the document which expressed the agreement. Allen v. Peachtree Airport Park Joint Venture, 231 Ga. App. 549, 499 S.E.2d 690 (1998). 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). Consideration of correspondence proper. - In construing contract it is proper, in order to arrive at intention of parties, to consider correspondence between them leading up to and consummating contract. Caddick Milling Co. v. Moultrie Grocery Co., 22 Ga. App. 524, 96 S.E. 583 (1918). It is proper to consider correspondence between parties leading up to contract in ascertaining intention. Romine, Inc. v. Savannah Steel Co., 117 Ga. App. 353, 160 S.E.2d 659 (1968). Prior representations and negotiations are merged into written contract. - All perti-

nent representations and negotiations prior to the preparation and execution of a written contract are merged therein; and if the terms of the written contract are clear and unambiguous, the court will look to it and to it alone to find the intention of the parties with respect thereto. Hartrampf v. Citizens & S. Realty Investors, 157 Ga. App. 879, 278 S.E.2d 750 (1981). Words susceptible of various interpretations construed as it is reasonable to suppose parties intended. - Words susceptible of more extensive or restrictive signification must be taken in sense which best effectuates what it is reasonable to suppose was intention of parties. Strickland v. Georgia Cas. & Sur. Co., 224 Ga. 487, 162 S.E.2d 421 (1968). 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). Unambiguous terms of insurance contract to be taken in plain, ordinary, and popular sense. - 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). Ambiguous terms of insurance contract. - After determining that the definition of the term ‘‘total disability’’ in two of an insurer’s disability policies was ambiguous after applying the common and ordinary meanings of the words used in the definition to ascertain the intent of the parties pursuant to O.C.G.A. § 13-2-3 and construing the term against the insurer, 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 show that the insured was totally disabled. Putnal v. Guardian Life Ins. Co. of Am., No. 5:04-CV-130 (HL), 2006 U.S. Dist. LEXIS 70931 (M.D. Ga. Sept. 29, 2006). Insurance coverage of mobile boom truck. - Where the mobile boom truck was the only vehicle covered by an insurance policy

Ascertaining Intent of Parties (Cont’d) it was logically inconsistent to consider that the vehicle was excluded from coverage by a clause which excepted vehicles maintained solely for transportation of special equipment. U.S. Fid. & Guar. Co. v. Gillis, 164 Ga. App. 278, 296 S.E.2d 253 (1982). Corporation’s general liability insurance policy. - Parties’ clear and unambiguous intention was to exclude the type of injury that occurred to the fitness club’s patron from coverage under their commercial general liability policy and since the language of the policy clearly expressed such an exclusion, the trial court erred in denying the insurance company’s motion for summary judgment on the company’s claim that it did not have a duty to defend and indemnify the fitness club in the patron’s suit against the fitness club for an injury the patron sustained in using the club’s exercise machine. York Ins. Co. v. Houston Wellness Ctr., Inc., 261 Ga. App. 854, 583 S.E.2d 903 (2003). Parties intended to name employer as additional insured. - As a renewal policy was issued while an independent contractor agreement was still in force, and that agreement obliged the insured to name an employer as an additional insured on the insured’s commercial general liability policy, the court concluded as a matter of law that the parties intended that the employer be named as an additional insured on the renewal policy, even though it was not clearly named therein. Grange Mut. Cas. Co. v. Snipes, 298 Ga. App. 405, 680 S.E.2d 438 (2009). Jury question. - In unique instances, an issue to resolve the ambiguity and to ascertain the true intent of the parties should be sent to the jury under proper instructions. American Honda Motor Co. v. Williams & Assocs., 208 Ga. App. 636, 431 S.E.2d 437 (1993). Validating Construction Preferred Construction giving effect to all terms of contract favored over one which would nullify part. - In ascertaining intent, that construction will be favored which gives meaning and effect to all of 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 instrument. Paul v. Paul, 235 Ga. 382, 219 S.E.2d 736 (1975). When contract susceptible of construction showing lawful or unlawful intent, former to be favored. - Intention contrary to law should not be read into contract by placing such construction upon provision therein, when provision is just as susceptible of construction that will show lawful intention. Pollard v. Congress Fin. Corp., 153 Ga. App. 357, 265 S.E.2d 296 (1980). Right of first refusal. - 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). Construction confining operation to facts and circumstances reasonably anticipated, favored over one rendering contract speculative. - If contract is subject to two constructions, one which would render it highly speculative and other which would confine its operation to facts and circumstances more reasonably to be anticipated, the latter should be adopted as the one more likely in harmony with the intention of the parties who presumably would not desire in the contract any element of chance that might reasonably be avoided, but would prefer to agree with reference to conditions about which an intelligent judgment might be exercised. Allen v. Sams, 31 Ga. App. 405, 120 S.E. 808 (1923), cert. denied, 31 Ga. App. 811, (1924). Two inconsistent clauses in deed each to be given effect, if possible. - Trend of modern authorities is toward restriction of rule that where there are two utterly inconsistent clauses in deed, former must prevail, and each part of deed is given effect, if possible. Skinner v. Bearden, 77 Ga. App. 325, 48 S.E.2d 574 (1948). Strictness of ancient rule as to repugnancy in deeds is much relaxed, so that in this, as in other cases of construction, if clauses or parts are conflicting or repugnant, intention

is gathered from whole instrument. Collinsville Granite Co. v. Phillips, 123 Ga. 830, 51 S.E. 666 (1905). Courts to construe deeds, whenever possible, so no part or words are rejected. - One of the most important rules in construction of deeds is to so construe the deeds that no part or words shall be rejected. Courts lean to such construction as reconciles different parts, and reject construction which leads to contradiction. Of course, a deed or other contract should be construed as a whole, and in its entirety, in order to find true intention of parties. Skinner v. Bearden, 77 Ga. App. 325, 48 S.E.2d 574 (1948). Application Words construed in sense in which employed, irrespective of proper, logical meaning. - Words in contract to be construed in sense in which the words are apparently mutually employed by contracting parties, irrespective of their proper and logical meaning. Brooks v. Folds, 33 Ga. App. 409, 126 S.E. 554 (1925). Language construed in accord with Supreme Court’s construction, prior to contract’s execution, of same language. - When deed in question, in suit involving its construction was executed after decision of Supreme Court construing same language used in same way in a deed, it should be assumed that parties in using identical provision there construed, did so in light of ruling there made, such construction of the provision is not thought to change or alter contract made by parties, even assuming that otherwise, terms used might normally have a different meaning. Heist v. Dunlap & Co., 193 Ga. 462, 18 S.E.2d 837 (1942). Absent clear expression of contrary intent, party not allowed advantage of party’s own wrong. - Contract will not be construed to authorize party to take advantage of that party’s own wrong, unless it is plain and manifest that such was intention of parties. National Sur. Corp. v. Algernon Blair, Inc., 114 Ga. App. 30, 150 S.E.2d 256, rev’d, 222 Ga. 672, 151 S.E.2d 724 (1966). Ambiguous terms required resort to ascertaining parties’ intent. - 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 reason-

able definition. These ambiguities rendered it appropriate for the trial court, and 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). Court erred in substituting court’s own legal meaning of ambiguous term. - District court made a fact finding that a receiver orally agreed to study an interest claim of a note payee and orally agreed to pay the note if the interest obligation was a ‘‘valid non-contingent balance sheet liability.’’ The court then erroneously substituted what the court deemed to be the legal meaning of that term, instead of determining that the term was ambiguous, and then determining what the parties intended. Georgia R.R. Bank & Trust Co. v. FDIC, 758 F.2d 1548 (11th Cir. 1985). Formal power of attorney, executed with deliberation, subject to strict construction; general terms in the power of attorney are restricted to consistency with controlling purpose, and will not extend authority so as to add new and distinct powers different from special powers expressly delegated. Martin v. McLain, 51 Ga. App. 336, 180 S.E. 510 (1935). Settlement agreement is a contract, the construction of which is a question of law for the court. World Bazaar Franchise Corp. v. CCC Assocs. Co., 167 Bankr. 985 (Bankr. N.D. Ga. 1994). Note stipulating payment of certain sum means payment in money. - Note in which it is stipulated that certain sum will be paid means that this sum will be paid in money, and neither maker nor endorser will be heard to plead or prove that there was parol agreement by which note was to be satisfied with nothing else than money. Kerr v. Holder, 13 Ga. App. 9, 78 S.E. 682 (1913). Document entitled ‘‘security agreement.’’ - Though a document was entitled, and, did in fact, constitute, a ‘‘security agreement’’, the language of the agreement combined with other admissible evidence, was sufficient indicia of a loan contract with such definite terms as to be held enforceable. Nelson v. Nelson, 176 Ga. App. 107, 335 S.E.2d 411 (1985). Section limits on rule that will to be construed under law effective at testator’s

Application (Cont’d) death. - A will is to be construed under the law in effect at testator’s death, but this is only one of the rules of construction and is applicable only where no expression on subject was made by testator. Carnegie v. First Nat’l Bank, 218 Ga. 585, 129 S.E.2d 780 (1963). Provision conditioning subcontractor’s right to payment upon payment by owner valid if intention clearly expressed. - Provision in contract may make payment by owner condition precedent to subcontractor’s right to payment if contract between general contractor and subcontractor should contain express condition clearly showing that to be intention of parties. Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974). Construction of incontestability clause in insurance contract. - See Penn Mut. Life Ins. Co. v. Childs, 65 Ga. App. 468, 16 S.E.2d 103 (1941). Construction of railroad right of way grant. - See Atlantic C.L.R.R. v. Sweat, 177 Ga. 698, 171 S.E. 123 (1933). 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) and 13-2-3, 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). 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). Indemnification clause. - Based on contractual rules of construction pursuant to O.C.G.A. § 13-2-3, because a purchase agreement between a retail store and a fan company indicated that the company was not obligated to indemnify the store for the store’s negligent conduct, and a later purchase agreement was inapplicable to a prior purchase, the trial court properly granted partial summary judgment to the company and denied summary judgment to the store on the indemnification claim; the company had commenced a voluntary recall of one of the company’s products that created a fire hazard, but the store had negligently failed to provide the company with the name of a particular purchaser, which resulted in no recall notice being sent to the purchaser and subsequently, a house fire which was caused by the product resulted in an individual’s death. Serv. Merch. Co. v. Hunter Fan Co., 274 Ga. App. 290, 617 S.E.2d 235 (2005). Intent of parties to insurance contract determinitive of sense in which terms employed are used. - An insurance policy is a contract of indemnity for loss, and intention of parties, if it can be ascertained, must determine sense in which terms employed are used. This intention of parties must be sought for in accordance with true meaning and spirit in which the agreement was made and expressed in written instrument, and ordinary and legal meaning of words employed must be taken into consideration. Wallace v. Virginia Sur. Co., 80 Ga. App. 50, 55 S.E.2d 259 (1949). Ambiguous insurance policy construed so as to effectuate intent of insured known to insurer. - Where evidence in suit by insured against insurance company indicates that intention of insured was to insure semi-trailer truck involved in accident, and that this intention was known to company through its agent who saw truck and took its motor number which was inserted in policy, insurance contract would be construed to include semi-trailer truck, since contract was ambiguous, even though company insisted the company’s policy did not cover semi-trailer trucks. American Cas. Co. v. Callaway, 75 Ga. App. 799, 44 S.E.2d 400 (1947).

Insurance policy intended to cover insured using nonowned auto. - Despite the well-known maxim, ‘‘coverage follows the car,’’ the language in the insurance policy relating to the insured’s use of a nonowned auto (‘‘. . . coverage does apply while you . . . are using a private passenger auto . . .’’) clearly showed an intent to cover the insured in that regard, in addition to the protection existing where the person insured was using an insured auto. Allstate Ins. Co. v. Estell, 171 Ga. App. 773, 320 S.E.2d 631 (1984). If insurance policy’s date of issue obliterated or illegible, jury to determine proper date. - When on trial of case it appears that date of issue written on policy of insurance has become so obscured or obliterated that it is illegible, it is for jury to determine from evidence introduced for that purpose on what date policy was issued. Life & Cas. Ins. Co. v. Monday, 85 Ga. App. 659, 69 S.E.2d 910 (1952). Trial court erred in substituting a definition for one contained in insurance policy. - Since an insurance policy plainly defined the term ‘‘vacant,’’ the trial court was not authorized to substitute any other definition of that term for the one specified in the insurance policy. Sorema N. Am. Reinsurance Co. v. Johnson, 258 Ga. App. 304, 574 S.E.2d 377 (2002). Insurance policies, each containing escape clauses in event other insurance available, 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). When insurance policies contain escape clauses in event other insurance available, liability of each prorated. - When two or more automobile liability insurance policies afford basic coverage, but each contains a clause attempting to either escape from liability or become merely excess coverage if there is other available insurance, complete and literal intent of each cannot be given effect, but general intent not to be liable for entire loss is achieved by prorating liability as

provided by respective policies. Southern Home Ins. Co. v. Willoughby, 124 Ga. App. 162, 182 S.E.2d 910 (1971). Law of state where insurance agreements delivered applied. - When insurance agreements insuring properties in several states were delivered in Georgia and written choice of law provisions were not included in the agreements, Georgia law controlled interpretation of the agreements. Boardman Petro., Inc. v. Federated Mut. Ins. Co., 926 F. Supp. 1566 (S.D. Ga. 1995). Right to cancellation. - Since the final item in a contract was that the agreement would continue in effect with the right of either party to cancel by delivering to the other written notice at least 30 days prior to discontinuance of service, the contract contained a right for either party to cancel upon notice. F & F Copiers, Inc. v. Kroger Co., 194 Ga. App. 737, 391 S.E.2d 711 (1990). 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). 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 Specialty Ins. Co., No. A10A0504, 2010 Ga. App. LEXIS 380 (Apr. 7, 2010). Construction of real estate contract. - 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

Application (Cont’d) evidence, O.C.G.A. § 13-2-2. Krogh v. Pargar, LLC, 277 Ga. App. 35, 625 S.E.2d 435 (2005). In an action filed by a trust and its trustee against a school board alleging the breach of a real estate contract, or in the alternative, specific performance of the contract at a reduced purchase price, summary judgment in favor of the school board was reversed on the breach of contract claim; however, summary judgment on the specific performance claim was affirmed, as the trust failed to tender the full purchase price, which was a prerequisite to a specific performance demand, the trust was not excused from doing so, and a tender would not have been futile. Peaches Land Trust v. Lumpkin County Sch. Bd., 286 Ga. App. 103, 648 S.E.2d 464 (2007). Construction of rent increase in lease. - Intention of the parties to a lease was to provide for a rent increase, the amount being dependent on whether the property was rezoned, but nothing in the lease required the lessors to pursue rezoning; the lessee made an election between the two lease options addressing the rent increase when it started to pay rent in accordance with calculations provided for in the lease, and that option provided for a smaller rent increase but gave the lessors the right to terminate with 60 days notice. J.W. Truck Sales, Inc. v. Hartrampf Outdoor, LLLP, 279 Ga. App. 544, 631 S.E.2d 750 (2006). 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 it 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, 2008 Ga. LEXIS 668 (Ga. 2008).

In the bankruptcy claim action related to contract interpretation under O.C.G.A. § 13-2-3, the court determined that the Chapter 11 debtor’s board of directors terminated the severance plan before the former employees’ employment was terminated, and the bankruptcy court concluded that the former employees had no vested interests under the severance plan before it was terminated by the debtor’s board of directors; the court determined the date that the debtor’s severance plan was terminated and sustained the trustee’s objection to the related claims. In re Thomaston Mills, Inc., 301 B.R. 918 (Bankr. M.D. Ga. 2003). Enforcement of promissory note. - The debtor’s sister was entitled to enforce the debtor’s promissory note, even though the note was prepared on a bank’s form note, where the parties intended that the note be paid to the sister, as testified to by the bank employee who prepared the note, and as evidenced by the debtor’s delivery of the note to the debtor’s sister and the debtor’s payment of interest on the note for more than nine years. Heath v. Wheeler, 234 Ga. App. 606, 507 S.E.2d 508 (1998). Intent property be used for retail sales. - Trial court correctly ruled that ascertaining the intent of the parties, rather than restricting the use of implications to determine the parties’ intent, was of paramount importance as document used by the original property owners to express their intent to build a shopping center clearly expressed their intent and the intent of the subsequent property owners that the shopping center property be used only for retail sales only and that the property could not also be leased for use as office space. Yates v. Dublin Sir Shop, 260 Ga. App. 369, 579 S.E.2d 796 (2003). Divorce settlement agreement. - 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 in-

come’’ 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). Disability insurance policies. - 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. §§ 13-2-2(4) and 13-2-3, 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). Trial court erred in granting summary judgment to a contractor on the contractor’s claim that the contractor had terminated a contract to build a wastewater treatment facility based on the failure to obtain a cold weather discharge permit specified in the contract. The purpose of the permitting conditions was to allow the parties to abort the contract at the outset, prior to commencing construction of the facility, and the contractor waived its right to terminate by completing construction and continuing to operate the plant. Forsyth County v. Waterscape Servs., LLC, No. A09A1964, 2010 Ga. App. LEXIS 250 (Mar. 16, 2010).

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. - 17 Am. Jur. 2d, Contracts, §§ 1 et seq., 18 et seq. C.J.S. - 17A C.J.S., Contracts, §§ 295, 300, 305, 346. ALR. - Construction of contract for sale of commodity to the extent of the buyer’s requirements, 7 ALR 498. Admissibility of parol evidence to show that a bill or note was conditional, or given for a special purpose, 20 ALR 421; 54 ALR 702; 75 ALR 1519; 105 ALR 1346. Circumstances other than relationship of parties which repel inference of an agreement to pay for work performed at one’s request, or with his acquiescence, 54 ALR 548. Admissibility of parol evidence to vary or explain contract implied from the regular endorsement of a bill or note, 54 ALR 999; 92 ALR 721. Duty of lessee under oil or gas lease to drill ‘‘protection’’ wells, 60 ALR 950.

Contract granting timber rights as covering timber that becomes such, or reaches prescribed dimensions, after execution, but during period covered, 94 ALR 1420. Construction and application of provision of construction contract as regards retention of percentage of current earnings until completion, 107 ALR 960. Rights of buyer and seller inter se as affected by invalidity of, or subsequent changes or developments with respect to, tax, 115 ALR 667; 132 ALR 706. Formal or written instrument as essential to completed contract where the making of such instrument is contemplated by parties to verbal or informal agreement, 122 ALR 1217; 165 ALR 756. What taxes are within contemplation of contract which provides for payment or assumption of taxes or varies consideration with reference to taxes, 140 ALR 517. Validity and construction of contract for

exclusive representation of persons participating in, or connected with, entertainment enterprises, 175 ALR 617. Construction and effect of contract for sale of commodity to fill buyer’s requirements, 26 ALR2d 1099. Oil and gas as ‘‘minerals’’ within deed, lease, or license, 37 ALR2d 1440. Employee’s rights with respect to compensation or bonus where he continues in employer’s service after expiration of contract for definite term, 53 ALR2d 384. Size and kind of trees contemplated by contracts or deeds in relation to standing timber, 72 ALR2d 727. Validity and effect of provision in contract against mechanic’s lien, 76 ALR2d 1087; 75 ALR3d 505. Admissibility of extrinsic evidence to identify person or persons intended to be designated by the name in which a contract is made, 80 ALR2d 1137. What amounts to development or operation for oil or gas within terms of habendum clause extending primary term while the premises are being ‘‘developed or operated’’, 96 ALR2d 322.

Who, as between landlord and tenant, must make, or bear expense of, alterations, improvements, or repairs ordered by public authorities, 22 ALR3d 521. Insurance on life of partner as partnership asset, 56 ALR3d 892. Grant, lease, exception, or reservation of ‘‘oil, gas, and other minerals,’’ or the like, as including coal or metallic ores, 59 ALR3d 1146. Master and servant: regular payment of bonus to employee, without express contract to do so, as raising implication of contract for bonus, 66 ALR3d 1075. Release or waiver of mechanic’s lien by general contractor as affecting rights of subcontractor or materialman, 75 ALR3d 505. Construction contract provision excusing delay caused by ‘‘severe weather,’’ 85 ALR3d 1085. Implied duty of oil and gas lessee to protect against drainage, 18 ALR4th 14. Remedy for breach of implied duty of oil and gas lessee to protect against drainage, 18 ALR4th 147.