General Consideration

Discussion of criterion for determining whether contract is entire or severable. —

See Dolan v. Lifsey, 19 Ga. App. 518 , 91 S.E. 913 , 1917 Ga. App. LEXIS 212 (1917); Carlton v. Moultrie Banking Co., 170 Ga. 185 , 152 S.E. 215 , 1930 Ga. LEXIS 419 (1930); Burns v. Mitchell, 55 Ga. App. 862 , 191 S.E. 870 , 1937 Ga. App. LEXIS 529 (1937); Evans v. Hartley, 57 Ga. App. 598 , 196 S.E. 273 , 1938 Ga. App. LEXIS 346 (1938); Piedmont Life Ins. Co. v. Bell, 103 Ga. App. 225 , 119 S.E.2d 63 , 1961 Ga. App. LEXIS 913 (1961); Yeargin v. Bramblett, 115 Ga. App. 862 , 156 S.E.2d 97 , 1967 Ga. App. LEXIS 1284 (1967).

Issue of severability of contract is determined by intention of parties, as evidenced by the terms of the contract. Horne v. Drachman, 247 Ga. 802 , 280 S.E.2d 338 , 1981 Ga. LEXIS 896 (1981).

Whether contract is upon one consideration important in ascertaining parties’ intent. —

If contract is upon one consideration, this fact is of great importance in determining whether parties intended contract to be entire or severable. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 , 58 S.E. 200 , 1907 Ga. LEXIS 190 (1907); Spalding County v. Chamberlin & Co., 130 Ga. 649 , 61 S.E. 533 , 1908 Ga. LEXIS 378 (1908).

Contract of guaranty as entire or divisible, depending on when consideration passes. —

There is entire consideration in guaranty contract when all of it passes at time of execution of contract, but when guaranty is to apply not only to indebtedness already incurred, but as well to future obligations, it is divisible and separable. Haynie v. First Nat'l Bank, 117 Ga. App. 766 , 162 S.E.2d 27 , 1968 Ga. App. LEXIS 1227 (1968).

Global settlement agreements would tend to be entire rather than severable; thus, the trial court erred in ruling that an agreement was severable since appellee’s agreement to execute the mutual releases provided part of the consideration for appellant’s agreement to pay money. Imerman v. London, 255 Ga. App. 140 , 564 S.E.2d 544 , 2002 Ga. App. LEXIS 531 (2002).

Courts are not bound by severability provisions in antenuptial agreements. —

Husband’s argument that an antenuptial agreement contained a severability clause and that, under O.C.G.A. § 13-1-8(a) , the failure to abide by the portion of the agreement concerning attachment of lists showing property owned or held did not void the entire agreement was without merit; the trial court was not bound by the language of the agreement as to severability, but the question was whether there was a misrepresentation or nondisclosure of a material fact. Alexander v. Alexander, 279 Ga. 116 , 610 S.E.2d 48 , 2005 Ga. LEXIS 162 (2005).

Entire Contracts

If contract was to take whole or none, then contract would be entire. Horne v. Drachman, 247 Ga. 802 , 280 S.E.2d 338 , 1981 Ga. LEXIS 896 (1981).

If each party’s promise is only part consideration for other party’s promise, contract is entire. Pittsburgh Plate Glass Co. v. Jarrett, 42 F. Supp. 723, 1942 U.S. Dist. LEXIS 3262 (D. Ga.), modified, 131 F.2d 674, 1942 U.S. App. LEXIS 2918 (5th Cir. 1942).

An entire contract is one in which consideration is entire on both sides. Entire fulfillment of promise by either in absence of any agreement to contrary, or waiver, is condition precedent to fulfillment of any part of promise by other. Carlton v. Moultrie Banking Co., 170 Ga. 185 , 152 S.E. 215 , 1930 Ga. LEXIS 419 (1930).

In indivisible contract, fulfillment of promise by either is condition precedent to performance by other. —

In indivisible contract, entire fulfillment of promise by either, in absence of any agreement to contrary, or waiver, is condition precedent to fulfillment of any part of promise by the other. Hill v. Balkcom, 79 Ga. 444 , 5 S.E. 200 , 1887 Ga. LEXIS 249 (1887); Dolan v. Lifsey, 19 Ga. App. 518 , 91 S.E. 913 , 1917 Ga. App. LEXIS 212 (1917); Williams v. Claussen-Lawrence Constr. Co., 120 Ga. App. 190 , 169 S.E.2d 692 , 1969 Ga. App. LEXIS 711 (1969).

Contract may be an entire one and yet contain stipulation for delivery by installments. Branch, Sons & Co. v. Palmer, 65 Ga. 210 , 1880 Ga. LEXIS 142 (1880).

Entire contract not apportionable at law or in equity. —

Contract to pay a gross sum for certain and definite consideration is an entire contract, and is not apportionable either at law or in equity. Carlton v. Moultrie Banking Co., 170 Ga. 185 , 152 S.E. 215 , 1930 Ga. LEXIS 419 (1930); Williams v. Claussen-Lawrence Constr. Co., 120 Ga. App. 190 , 169 S.E.2d 692 , 1969 Ga. App. LEXIS 711 (1969).

Entire contract void in part is void in toto. —

Contract made for sale of real and personal property, which is entire and founded upon one and same consideration, if void in part is void in toto. Mims v. Gillis, 19 Ga. App. 53 , 90 S.E. 1035 , 1916 Ga. App. LEXIS 32 (1916).

Repudiation of one of two vital obligations in an entire contract is repudiation of all of contract. Unity Life Ins. Co. v. Beasley, 64 Ga. App. 277 , 13 S.E.2d 32 , 1941 Ga. App. LEXIS 8 (1941).

Where contract is entire, purchaser cannot accept part of goods and reject remainder. —

Where purchaser rejects part of goods sold under an entire contract, because rejected goods are of quality inferior to those contracted for, purchaser is not bound for full amount of agreed price, but is to be treated as if the purchaser had accepted goods of quality inferior to that covered by express warranty. Fleisher Knitting Mills, Inc. v. Greenberg, 54 Ga. App. 552 , 188 S.E. 458 , 1936 Ga. App. LEXIS 696 (1936).

Where single promise based on single consideration, whole contract void if either is illegal. —

Where agreement consists of single promise, based on single consideration, if either is illegal, the whole contract is void. But where agreement is founded on legal consideration containing a promise to do several things or to refrain from doing several things, only some of which are illegal, promises which are not illegal will be held valid. Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646 , 152 S.E.2d 579 , 1966 Ga. App. LEXIS 884 (1966).

Statute of limitations begins running when work under indivisible contract terminates or is completed. —

As against cause of action to recover compensation for services rendered under an entire indivisible contract, statute of limitations begins to run when services are terminated or work is completed, although work may consist of numerous parts or items, and although contract provides that compensation shall be made at stated intervals, or in installments. Burns v. Mitchell, 55 Ga. App. 862 , 191 S.E. 870 , 1937 Ga. App. LEXIS 529 (1937).

Six year limitation period was applicable as contract obligation was entire. —

Contract obligation was entire as the contractual consideration at issue was a single sum certain to be paid in one lump sum; the fact that the whole sum could have been due at different times, whichever came first, according to the contract, did not render the contract divisible; accordingly, the six year statute of limitations found in O.C.G.A. § 9-3-24 for breaches of written contracts applied and time barred defendant’s counterclaim. Bridge Capital Investors II v. Small, No. 3:02-CV-80, 2005 U.S. Dist. LEXIS 17088 (M.D. Ga. Aug. 11, 2005), aff'd, 185 Fed. Appx. 836, 2006 U.S. App. LEXIS 15179 (11th Cir. 2006).

Where claims arise from entire contract for continuous services, demand will be considered entire. Burns v. Mitchell, 55 Ga. App. 862 , 191 S.E. 870 , 1937 Ga. App. LEXIS 529 (1937).

In action on entire contract, defendants pleading breach by plaintiff need not allege amount damaged. —

Where in contract which is basis of action was an entire contract, and defendants can plead that plaintiff had breached in certain particulars, setting the particulars forth, it is not incumbent upon the defendants to allege amount that the defendants had been damaged by reason of such breaches. Dolan v. Lifsey, 19 Ga. App. 518 , 91 S.E. 913 , 1917 Ga. App. LEXIS 212 (1917).

On facts, contract of sale covering lot of goods not severable. Smith v. Harrison, 26 Ga. App. 325 , 106 S.E. 191 , 1921 Ga. App. LEXIS 129 (1921); Fleisher Knitting Mills, Inc. v. Greenberg, 54 Ga. App. 552 , 188 S.E. 458 , 1936 Ga. App. LEXIS 696 (1936).

In entire contract, appreciable material deficiency in quantity delivered defeats recovery by seller. —

Where contract is entire any appreciably material deficiency in quantity of goods delivered would ordinarily defeat recovery by seller, since whole contract must stand or fall together. Frank & Meyer Neckwear Co. v. White, 29 Ga. App. 694 , 116 S.E. 855 , 1923 Ga. App. LEXIS 169 (1923).

Note for purchase price, stated only in aggregate, is an entire contract. —

In suit upon note for purchase price of various kinds and quantities of fertilizers, price of which is stated only in aggregate, there can be no recovery for any of purchase price if sold in violation of law. The contract sued upon, being entire, must fail altogether if consideration is in any part illegal. Bartow Guano Co. v. Adair, 29 Ga. App. 644 , 116 S.E. 342 , 1923 Ga. App. LEXIS 150 (1923).

Contract for complete construction of building at stipulated price not divisible. —

Contract whereby one agrees to furnish all material and labor for construction of building, and to turn over the building in finished state to another on payment of stipulated price, such contract is an entire one and is not to be held as divisible because the contract contains a stipulation that when building has arrived at certain stage of completion owner may suspend further work, and that, if owner elects to do so, a stated sum is to be compensation for labor done and material furnished. Hunnicutt & Bellingrath Co. v. Van Hoose, 111 Ga. 518 , 36 S.E. 669 , 1900 Ga. LEXIS 674 (1900).

Lease contract held to be entire. —

Lease contract was entire and not severable, where the agreement provided a lump sum monthly rental rate of $2,250 for all laboratory “systems” provided, but did not segregate the laboratory equipment nor assign a monthly rental value for each system, and the lease designated a single sale price for the equipment. Medical Doctor Assocs. v. Lab-Quip Co., 201 Ga. App. 880 , 412 S.E.2d 625 , 1991 Ga. App. LEXIS 1620 (1991).

Leasehold use limited. —

A requirement in a lease that the space be used solely as an attorney’s office cannot be considered merely an ancillary covenant but must be considered central to the contract. Merren v. Plaza Towers Ltd. Partnership, 161 Ga. App. 543 , 287 S.E.2d 771 , 1982 Ga. App. LEXIS 1935 (1982).

Tuition contract stipulating no reduction in charges although payable periodically upon voluntary withdrawal not severable. —

Where parties to contract for tuition contemplate that school contracts for services a year in advance and that places are limited, and where contract incorporates provision that charges will not be reduced upon voluntary withdrawal, contract is entire and not severable notwithstanding that payments are payable for separate periods of academic year. Matthews v. Riverside Academy, 45 Ga. App. 30 , 163 S.E. 238 , 1932 Ga. App. LEXIS 152 (1932).

Employment contract containing anticompetitive clause and pretermination notice requirement not severable. —

Contract of employment containing restrictive provisions as to right of employee to work for competitor of employer in territory within one year after termination of employment and requiring one week’s notice before employment can be terminated is an entire contract and the contract’s provisions must stand or fall together. If employer discharges employee in violation of provision requiring one-week’s notice, the employer is not entitled, in equity, to enjoin employee from working for competitor. Felton Beauty Supply Co. v. Levy, 198 Ga. 383 , 31 S.E.2d 651 , 1944 Ga. LEXIS 401 (1944).

Employment contracts. —

It was a significant indication of the parties’ intent that the employment agreement did not contain a severability clause; thus, the contract was obviously intended to be entire, and the defective provisions go to the essential elements of the contract: the duration of the contract and the employee’s period of employment and salary were not subsidiary to the essential purpose of the contract. Therefore, the indefinite statements regarding the employee’s duties, the term of the employee’s employment, and the employee’s salary made the contract unenforceable. Key v. Naylor, Inc., 268 Ga. App. 419 , 602 S.E.2d 192 , 2004 Ga. App. LEXIS 939 (2004).

Contractor cannot recover on indivisible contract absent performance in accordance with contract’s terms. —

Contract to perform certain work on building which is entire and not divisible cannot be recovered upon by contractor until the contractor has performed work in accordance with terms of contract. Barnes v. Goodner, 77 Ga. App. 448 , 49 S.E.2d 128 , 1948 Ga. App. LEXIS 581 (1948).

Absent acceptance of part performance, contractor denied recovery on contract for labor or materials. —

Absent acceptance of part performance, contractor failing to perform work in accordance with contract cannot recover on contract for labor performed or material furnished. Hillhouse v. Adams, 44 Ga. App. 315 , 161 S.E. 274 , 1931 Ga. App. LEXIS 701 (1931).

No recovery on indivisible employment contract by rightfully discharged employee for partial performance. —

Where contract between employer and employee is an entire one, and employee is rightfully discharged, in suit by the employee on contract there can be no recovery for partial performance. Parker v. Farlinger, 122 Ga. 315 , 50 S.E. 98 , 1905 Ga. LEXIS 192 (1905).

No recovery on indivisible contract for part performance, although action in quantum meruit may be for accepted part performance. Dolan v. Lifsey, 19 Ga. App. 518 , 91 S.E. 913 , 1917 Ga. App. LEXIS 212 (1917).

Severable Contracts

Contract containing mutual, legal promises and illegal promises is severable and former are enforceable. —

Where contract contains mutual, binding, legal promises independent of two allegedly illegal, void provisions, the contract is severable, and legal portions are not annulled by illegal ones and can be enforced. Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646 , 152 S.E.2d 579 , 1966 Ga. App. LEXIS 884 (1966).

Because the settlement agreement did not consist of a single promise based on a single consideration, but rather was founded on a legal consideration containing a promise to do several things or to refrain from doing several things and only the promise regarding college education payments was legally unenforceable, the remaining promises, that were not illegal, remained valid. Charles v. Leavitt, 264 Ga. 160 , 442 S.E.2d 241 , 1994 Ga. LEXIS 404 (1994).

Waiver of nonwaivable matter does not void whole contract if severable. —

When loan agreement contains waiver of provision for notice of sale, which was nonwaivable under former Code 1933, § 20-305, unenforceable nature of this clause did not void entire contract if contract was severable. Lowe v. Termplan, Inc., 144 Ga. App. 671 , 242 S.E.2d 268 , 1978 Ga. App. LEXIS 1740 (1978).

A vehicle loaner agreement between a garage and the garage’s customer could be severed to eliminate the waiver by the customer of the garage’s liability insurance, which would violate both statute and public policy, and allow the remainder of the contract, which did not violate a statute or public policy, to remain enforceable. Nolley v. Maryland Cas. Ins. Co., 222 Ga. App. 901 , 476 S.E.2d 622 , 1996 Ga. App. LEXIS 979 (1996), cert. denied, No. S97C0150, 1997 Ga. LEXIS 261 (Ga. Jan. 31, 1997).

Party free to accept performance of remaining part of severable contract although severed portion illegal. —

Where contract is severable, even if there is partial failure of consideration because of illegality, one party to contract may not object if opposite party is willing to accept performance of remaining portions of contract. Jones v. Clark, 147 Ga. App. 657 , 249 S.E.2d 619 , 1978 Ga. App. LEXIS 2886 (1978).

Mere statement of two accounts does not make defendant debtor of one party alone where account of each arose out of separate contract for defendant’s services. Oliver v. Hall County Mem. Hosp., 65 Ga. App. 59 , 15 S.E.2d 257 , 1941 Ga. App. LEXIS 255 (1941).

Statement containing doctor’s and hospital’s accounts does not necessarily render them indivisible. —

Mere presentation by hospital to patient of single statement containing account of doctor and account of hospital does not necessarily merge account of doctor into indivisible part of account of hospital, and, upon failure of defendant to pay either or both accounts, doctor or hospital may subsequently sue in doctor’s or hospital’s own name for value of doctor’s or hospital’s services, and this is true even though in meantime either may have brought suit in their own name and recovered for their services only. Oliver v. Hall County Mem. Hosp., 65 Ga. App. 59 , 15 S.E.2d 257 , 1941 Ga. App. LEXIS 255 (1941).

Option to purchase not severable from unenforceable contract. —

A trial court erred in finding that a lease-purchase agreement was enforceable because, though it satisfied the statute of frauds, it was invalid for failure of consideration in that the lessee/proposed purchaser never paid the rent owed nor any of the property taxes, which not only invalidated the agreement but voided the purchase option under O.C.G.A. § 13-1-8(a) . Further, the trial court erred in holding that the lessee/proposed purchaser was entitled to specific performance of the agreement based on repairs made since there was no legal authority to support the trial court’s proposition that part performance of an otherwise unenforceable written agreement, as modified by subsequent oral agreements between the parties, transformed it into an enforceable parol contract. Estate of Ryan v. Shuman, 288 Ga. App. 868 , 655 S.E.2d 644 , 2007 Ga. App. LEXIS 1264 (2007), cert. denied, No. S08C0664, 2008 Ga. LEXIS 482 (Ga. May 19, 2008).

On facts, contract divisible. Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 , 58 S.E. 200 , 1907 Ga. LEXIS 190 (1907); Atlantic Steel Co. v. R.O. Campbell Coal Co., 262 F. 555, 1919 U.S. Dist. LEXIS 712 (D. Ga. 1919).

Contract with multiple promises based upon multiple considerations severable. —

Although an arbitration provision in an employment agreement was found to be unenforceable because the agreement was not initialed by all of the signatories, as required by O.C.G.A. § 9-9-2(c)(9), the remainder of the agreement was enforceable because the agreement was severable from the arbitration clause; it was found that the contract was severable under O.C.G.A. § 13-1-8(a) because the contract contained multiple promises based upon multiple consideration. ISS Int'l Serv. Sys. v. Widmer, 264 Ga. App. 55 , 589 S.E.2d 820 , 2003 Ga. App. LEXIS 999 (2003), cert. denied, No. S04C0544, 2004 Ga. LEXIS 216 (Ga. Mar. 1, 2004).

Causes of action accrue from time to time as services rendered under severable contract. —

Where account grew out of implied undertakings that amounted to severable contract, it follows that rights of action accrued and statute of limitation began to run as services were rendered and charges were made from time to time on the account. Yeargin v. Bramblett, 115 Ga. App. 862 , 156 S.E.2d 97 , 1967 Ga. App. LEXIS 1284 (1967).

Because the arbitration agreements contained a central promise, favored by federal law, to arbitrate their employment agreement, and an ancillary agreement to initiate arbitration claims within a year, the court inferred from the nature and structure of the agreement that the parties intended for the promises to be separate, so the agreement to arbitrate was severable from the agreement to initiate arbitration within a year, and on this basis the agreements between the parties to arbitrate the dispute had to be enforced unless there was an independent state law basis for refusing to enforce the contract. Zulauf v. Amerisave Mortg. Corp., No. 1:11-cv-1784-WSD, 2011 U.S. Dist. LEXIS 156699 (N.D. Ga. Nov. 23, 2011), modified, No. 1:11-cv-1784-WSD, 2012 U.S. Dist. LEXIS 206836 (N.D. Ga. Jan. 18, 2012).

Provision regarding payment of development impact fees severable. —

Trial court did not err by denying a county’s motion for summary judgment and concluding that the county’s obligation to provide water and sewer lines under a 2006 agreement was not affected by the Georgia Court of Appeal’s decision in another case invalidating the prepayment of development impact fees under a similar agreement because the invalid portion of the contract regarding the impact fees was severable under the agreement, which included an explicit severability clause. Effingham County v. Roach, 329 Ga. App. 805 , 764 S.E.2d 600 , 2014 Ga. App. LEXIS 705 (2014), cert. denied, No. S15C0577, 2015 Ga. LEXIS 222 (Ga. Mar. 30, 2015), overruled, Rivera v. Washington, 298 Ga. 770 , 784 S.E.2d 775 , 2016 Ga. LEXIS 248 (2016).

Amusement machine location lease agreement. —

Lease was severable. The sum to be paid was not fixed but varied based on the revenue generated by the game machines; the three different locations could operate independently of one another under the lease so separate causes lay for each breach. Merchant v. Ultra Grp. of Cos. (In re Al-Karim, Inc.), 529 Bankr. 366, 2015 Bankr. LEXIS 1320 (Bankr. N.D. Ga. 2015).

Class action waiver contained in unenforceable jury trial waiver was not severable. —

In a bank customer’s action alleging that a bank’s charges for overdraft of ATM funds were usurious interest, the customer agreements’ waiver of jury trials were not enforceable because the agreements’ class-action waiver was not an independent provision and was contained in the unenforceable jury trial waiver provision, it was not severable. SunTrust Bank v. Bickerstaff, 349 Ga. App. 794 , 824 S.E.2d 717 (2019).

Contract was severable and enforceable. —

Option contract, in which potential buyers of hotel were given a 60-day option to obtain financing in return for $10,000, was severable and enforceable; buyers were not allowed to escape contract obligations for lack of a specified interest rate in contract. Bulloch South, Inc. v. Gosai, 250 Ga. App. 170 , 550 S.E.2d 750 , 2001 Ga. App. LEXIS 717 (2001).

Under O.C.G.A. § 13-1-8(a) , it was proper to sever an illegal limiting provision of arbitration clause and to then compel arbitration of discrimination claims because the employment agreement contained a severability clause and Georgia law provided that a valid part of a contract was not invalidated by a separate part that was unenforceable and it was the intent of the parties to allow severance. Jackson v. Cintas Corp., 425 F.3d 1313, 2005 U.S. App. LEXIS 20199 (11th Cir. 2005).

Running of limitation. —

An action alleging that defendant company breached a sales representative agreement by removing areas from the representative’s territory and by repeatedly reducing the commission rate below that provided in the agreement was not time barred as to sales within the six-year limitation period prior to the suit, even though the removal of territory and rate reduction occurred more than six years before the suit was brought, since the commissions were not due until sales were consummated. Douglas & Lomason Co. v. Hall, 212 Ga. App. 475 , 441 S.E.2d 870 , 1994 Ga. App. LEXIS 304 (1994), cert. denied, No. S94C1045, 1994 Ga. LEXIS 700 (Ga. May 5, 1994).

General Consideration

Legislative intent behind the enactment of O.C.G.A. 13-1-11 has been fulfilled so long as a debtor has been informed that the debtor has 10 days from receipt of notice within which to pay principal and interest without incurring any liability for attorney fees. Trust Assoc. v. Snead, 253 Ga. App. 475 , 559 S.E.2d 502 , 2002 Ga. App. LEXIS 120 (2002).

Constitutionality. —

Supreme Court of Georgia held that O.C.G.A. § 13-1-11 bears a rational relationship to the purpose for which the statute was intended, namely to provide debtors with the opportunity to avoid the contractual obligation to pay the creditor’s attorney fees by allowing the debtor a last chance to pay the balance of the debt and avoid litigation. Austin v. Bank of Am., N.A., 293 Ga. 42 , 743 S.E.2d 399 , 2013 Ga. LEXIS 450 (2013).

Term “principal,” as used by the drafters of O.C.G.A. § 13-1-11 , refers only to the principal amount owing on the note in question. ITT Com. Fin. Corp. v. Fisher, 690 F. Supp. 1021, 1988 U.S. Dist. LEXIS 8873 (N.D. Ga. 1988).

Statute merely restricts right which common law recognized. —

The statute is not origin of all right to recover attorney’s fees in this state; the statute does not give a right where none existed at common law; on the other hand, the statute merely restricted a right which common law recognized. Keating v. Woods-Young Co., 42 Ga. App. 63 , 155 S.E. 206 , 1930 Ga. App. LEXIS 235 (1930); Global Indus., Inc. v. Harris, 376 F. Supp. 1379, 1974 U.S. Dist. LEXIS 8408 (N.D. Ga. 1974).

Statute to be strictly construed. —

This statute being in derogation of common law and an abridgment of ordinary right of contract is to be strictly construed, and not to extend to case not clearly falling within its terms. Oliver Typewriter Co. v. Fielder, 7 Ga. App. 525 , 67 S.E. 210 , 1910 Ga. App. LEXIS 370 (1910) (see O.C.G.A. § 13-1-11 ).

Statute, being in derogation of common law, is strictly construed. Ratliffe v. Hartsfield Co., 49 Ga. App. 598 , 176 S.E. 151 , 1934 Ga. App. LEXIS 505 (1934), rev'd, 181 Ga. 663 , 184 S.E. 324 , 1935 Ga. LEXIS 174 (1935) (see O.C.G.A. § 13-1-11 ).

Section applies to all contracts. —

O.C.G.A. § 13-1-11 by operation of law constitutes a part of all contracts incorporated in promissory notes, and all such instruments must be construed in the light of this particular section. Anderson v. Hendrix, 175 Ga. App. 720 , 334 S.E.2d 697 , 1985 Ga. App. LEXIS 2167 (1985).

Section inapplicable in eminent domain proceeding. —

O.C.G.A. § 13-1-11 was intended to apply only in default situations where an indebtedness is collected by or through an attorney after maturity, and the provision in a deed that a bank sought to enforce for reasonable attorney fees incurred as the result of an eminent domain proceeding in order to protect the bank’s security interest in the condemned property was not contemplated by the statutory scheme. Boddy Enters., Inc. v. City of Atlanta, 171 Ga. App. 551 , 320 S.E.2d 374 , 1984 Ga. App. LEXIS 2265 (1984).

Section inapplicable to exclusive listing contract. —

Exclusive listing contract is not a “note or other evidence of indebtedness” within the meaning of subsection (a) of O.C.G.A. § 13-1-11 . O'Brien's Irish Pub, Inc. v. Gerlew Holdings, Inc., 175 Ga. App. 162 , 332 S.E.2d 920 , 1985 Ga. App. LEXIS 2047 (1985).

O.C.G.A. § 13-1-11 is inapplicable to personal services contracts. See Holcomb v. Evans, 176 Ga. App. 654 , 337 S.E.2d 435 , 1985 Ga. App. LEXIS 2534 (1985).

Given the Georgia Supreme Court’s recent guidance on this issue, the district court properly applied O.C.G.A. § 13-1-11 in calculating attorneys’ fees. Because the guaranties provided for the payment of reasonable attorney’s fees without specifying any specific percent, the district court correctly concluded that § 13-1-11 (a)(2) governed in this case. Asma v. Wells Fargo Bank, N.A., 571 Fed. Appx. 848, 2014 U.S. App. LEXIS 13262 (11th Cir. 2014).

A lease was an “evidence of indebtedness” within the meaning of O.C.G.A. § 13-1-11 . Holmes v. Bogino, 219 Ga. App. 858 , 467 S.E.2d 197 , 1996 Ga. App. LEXIS 37 (1996).

Phrase “evidence of indebtedness” in O.C.G.A. § 13-1-11 is construed broadly so as to encompass leases. RadioShack Corp. v. Cascade Crossing II, LLC, 282 Ga. 841 , 653 S.E.2d 680 , 2007 Ga. LEXIS 788 (2007).

Debtor afforded opportunity to avoid attorney fees by paying debt. —

Law provides additional requirement that notice be given debtor in order that the debtor be afforded an opportunity to avoid attorney fees by paying the debt. GECC v. Brooks, 242 Ga. 109 , 249 S.E.2d 596 , 1978 Ga. LEXIS 1119 (1978).

Section as part of contract providing for attorney’s fees. —

All contracts to pay attorney’s fees incorporated in promissory notes or other evidences of indebtedness must be construed in light of the statute, which by operation of law constitutes a part of all such contracts. Hall v. Pratt, 103 Ga. 255 , 29 S.E. 764 , 1898 Ga. LEXIS 104 (1898); Stoner v. Pickett, 115 Ga. 653 , 42 S.E. 41 , 1902 Ga. LEXIS 512 (1902); Booth v. Rosier, 124 Ga. 154 , 52 S.E. 327 , 1905 Ga. LEXIS 681 (1905).

A lessor was correct in asserting a right to recover reasonable attorney fees under the lessor’s lease with its lessee as there was no special pleading requirement for the enforcement of such provision, and the lessor prevailed on the lessor’s claim for reimbursement for insurance premiums paid over the life of the lease; thus, the case was remanded for further proceedings as to the amount of reasonable fees the lessor could recover. Ranwal Props., LLC v. John H. Harland Co., 285 Ga. App. 532 , 646 S.E.2d 730 , 2007 Ga. App. LEXIS 571 (2007).

Fees awarded under paragraph (a)(2). —

Attorneys’ fees were awarded as designated by paragraph (a)(2) of O.C.G.A. § 13-1-11 where the guaranty agreement provided only for reasonable attorneys’ fees without designating any specific percent and the creditor complied with the notice provisions of § 13-1-11 by way of the creditor’s complaint. Westinghouse Credit Corp. v. Hall, 144 Bankr. 568, 1992 U.S. Dist. LEXIS 12571 (S.D. Ga. 1992).

There is no law requiring that promise to pay attorney’s fee shall be in writing in order to be enforceable. Forsyth Mercantile Co. v. Williams, 36 Ga. App. 130 , 135 S.E. 755 , 1926 Ga. App. LEXIS 827 (1926).

Attorney’s fees are for benefit of note holder, not attorney. —

Under O.C.G.A. § 13-1-11 , contractual provisions for attorney’s fees are not for the benefit of attorneys. The fees are in the nature of liquidated damages which inure to the benefit of the holder of the note. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211, 1981 Bankr. LEXIS 4873 (Bankr. N.D. Ga. 1981).

When attorney’s fees actually incurred or paid, debtor bound to pay as provided by law. National Acceptance Co. v. Zusmann, 379 F.2d 351, 1967 U.S. App. LEXIS 5863 (5th Cir.), cert. denied, 389 U.S. 975, 88 S. Ct. 478 , 19 L. Ed. 2 d 469, 1967 U.S. LEXIS 2804 (1967).

Collection of debt through foreclosure proceedings. —

A creditor is entitled to recover attorney fees pursuant to O.C.G.A. § 13-1-11 if the creditor’s attorney collects the debt via a foreclosure proceeding. Kenemer v. First Nat'l Bank, 210 Ga. App. 389 , 436 S.E.2d 96 , 1993 Ga. App. LEXIS 1167 (1993).

Curing of default on underlying obligation. —

Statutory attorney’s fees, as contemplated by O.C.G.A. § 13-1-11 , do not become a lien against secured property where a default on an underlying obligation is cured and reinstated pursuant to the provisions of the Bankruptcy Code (11 U.S.C.), as where default in a Chapter 12 case is cured in the confirmed plan of reorganization. In re Davis, 77 Bankr. 313, 1987 Bankr. LEXIS 1374 (Bankr. M.D. Ga. 1987).

Summary judgment entitling one to attorney fees. —

Plaintiff entitled to a summary judgment on a document establishing “evidence of indebtedness,” within the meaning of subsection (a) of O.C.G.A. § 13-1-11 is also entitled to a judgment for attorney fees thereon. Dalcor Mgt., Inc. v. Sewer Rooter, Inc., 205 Ga. App. 681 , 423 S.E.2d 419 , 1992 Ga. App. LEXIS 1292 (1992).

Reasonable attorney fees awarded. —

See Chemical Bank v. Grigsby's World of Carpet, Inc. (In re WWG Indus., Inc.), 44 Bankr. 287, 1984 U.S. Dist. LEXIS 21671 (N.D. Ga. 1984).

Attorney fee award held excessive. —

In an action to recover on a promissory note with past due interest, and upon entering summary judgment in favor of the lender, the trial court erred in awarding the lender $10,195.40 in attorney fees in a judgment in which the principal and interest amounted to only $6,259.12; under the formula delineated under O.C.G.A. § 13-1-11 , such amount was limited to $650.91. Long v. Hogan, 289 Ga. App. 347 , 656 S.E.2d 868 , 2008 Ga. App. LEXIS 44 (2008), cert. denied, No. S08C0886, 2008 Ga. LEXIS 516 (Ga. May 19, 2008).

Defenses to collection action. —

Bank was entitled to collect upon the indebtedness of a defaulted loan because the evidence did not support either of the defenses of estoppel or breach of an implied duty of good faith and fair dealing in opposition to the bank’s collection claims. Griffin v. State Bank, 312 Ga. App. 87 , 718 S.E.2d 35 , 2011 Ga. App. LEXIS 899 (2011).

Fee award improper when only generalized assertions of connectedness. —

While the trial court properly ruled that the defendant’s fee recovery was not limited by O.C.G.A. § 13-1-11 since the litigation was not an attempt to collect on a defaulted debt after maturity, the court abused the court’s discretion in awarding the defendant the full amount of requested fees because the court did not require the defendant to shoulder the defendant’s burden of proving that the claims were too intertwined to permit the separation of fees, instead allowing the defendant to make only generalized assertions of connectedness. Eagle Jets, LLC v. Atlanta Jet, Inc., 347 Ga. App. 567 , 820 S.E.2d 197 , 2018 Ga. App. LEXIS 565 (2018).

Section valid. —

Court found no error in the district court’s rejection of the company’s contention that the attorney’s fees provision was an unenforceable penalty; the 15% provisions was permitted under O.C.G.A. § 13-1-11 , and was not an unenforceable liquidated damages penalty. Branch Banking & Trust Co. v. Lichty Bros. Constr., Inc., 488 Fed. Appx. 430, 2012 U.S. App. LEXIS 18418 (11th Cir. 2012).

Relief not warranted. —

Lender was not entitled to a default judgment for specific performance against borrowers with respect to various loan documents because the lender did not allege that the borrowers breached the provisions or that the lender lacked an adequate legal remedy. Jones v. Bank of Am., N.A., 564 Fed. Appx. 432, 2014 U.S. App. LEXIS 7827 (11th Cir. 2014).

Award not supported by summary judgment affidavit. —

Trial court erred by entering a judgment for the specific amount of the debt and attorney fees and case was remanded to the trial court for further proceedings to determine a proper award of damages and attorney fees as the affidavit presented by the bank in support of the bank’s motion for summary judgment stated the bank relied on an attached payoff exhibit but the exhibit was a payoff quote for a loan issued by a different bank and did not support the damages awarded to the bank. Salas v. JP Morgan Chase Bank, N.A., 334 Ga. App. 274 , 779 S.E.2d 48 , 2015 Ga. App. LEXIS 618 (2015).

Award of fees under foreign jurisdiction law. —

Defendants failed to show the court erroneously awarded the bank attorney fees under South Carolina law despite the bank moving for fees under Georgia law because the bank’s entitlement to attorney fees stemmed from the terms of the note, and the note was accepted in South Carolina. PNC Bank, N.A. v. GVTG, LLC, 592 Fed. Appx. 775, 2014 U.S. App. LEXIS 21658 (11th Cir. 2014).

Conditions Precedent to Recovery of Attorney’s Fees

Failure to comply with law renders attorney fees provided for in note or contract uncollectable. Dunlap v. Citizens & S. DeKalb Bank, 134 Ga. App. 893 , 216 S.E.2d 651 , 1975 Ga. App. LEXIS 2210 (1975).

Bank that filed a claim against an LLC’s Chapter 11 bankruptcy estate, seeking payment of principal and interest the bank was owed on a debt the LLC guaranteed, was not allowed to recover attorneys fees the bank incurred pre-petition to collect the debt because the bank did not give the LLC notice under O.C.G.A. § 13-1-11 that the debt was in default and that the bank would be pursuing collection action. Southside, LLC v. Suntrust Bank (In re Southside, LLC), No. MHM, 520 Bankr. 914, 2014 Bankr. LEXIS 4494 (Bankr. N.D. Ga. 2014).

Liability for attorney’s fees contingent upon full compliance with conditions precedent stated in law. Adair Realty & Loan Co. v. Williams Bros. Lumber Co., 112 Ga. App. 16 , 143 S.E.2d 577 , 1965 Ga. App. LEXIS 587 (1965); Holt v. Rickett, 143 Ga. App. 337 , 238 S.E.2d 706 , 1977 Ga. App. LEXIS 2311 (1977); Citizens & S. Nat'l Bank v. Bougas, 149 Ga. App. 722 , 256 S.E.2d 37 , 1979 Ga. App. LEXIS 2003 (1979), rev'd, 245 Ga. 412 , 265 S.E.2d 562 , 1980 Ga. LEXIS 810 (1980), vacated, 154 Ga. App. 392 , 268 S.E.2d 450 , 1980 Ga. App. LEXIS 2187 (1980); Mills v. East Side Investors, 7 Bankr. 515, 1980 U.S. Dist. LEXIS 15403 (N.D. Ga. 1980), aff'd, 694 F.2d 242, 1982 U.S. App. LEXIS 23190 (11th Cir. 1982).

Section makes enforcement of provision for attorney’s fees contingent on creditors giving written notice that debtor can avoid added expense of attorney’s fees by paying principal and interest then due within ten days of receipt of notice. United States v. Hattaway, 488 F.2d 55, 1974 U.S. App. LEXIS 10664 (5th Cir. 1974).

Contingency must be met prior to payment of attorney’s fees. —

Under contract to pay attorney’s fees if note or other obligation is collected by or through attorney, only contingent liability is created for payment of attorney’s fees, and no liability for payment of such fees can or will arise until such time as contingency which is condition precedent to collection of such fees has been fully complied with, and collection made by attorney at law. Strickland v. Williams, 215 Ga. 175 , 109 S.E.2d 761 , 1959 Ga. LEXIS 426 (1959).

If conditions of law complied with, attorney’s fees treated as parts of principal debt rather than as penalty. Morgan v. Kiser & Co., 105 Ga. 104 , 31 S.E. 45 , 1898 Ga. LEXIS 458 (1898); Royal v. Edinburgh-American Land Mtg. Co., 143 Ga. 347 , 85 S.E. 190 , 1915 Ga. LEXIS 433 (1915).

Since a loan servicer did not comply with an O.C.G.A. § 13-1-11 requirement of giving notice of a borrower’s (a Chapter 13 debtor) right to avoid attorney fees in mortgage foreclosure proceedings by paying the principal and interest of the loan in full within 10 days, the servicer could not recover attorney fees under 11 U.S.C. §§ 502 and 506(b). Clark v. Wash. Mut. Home Loans, 299 Bankr. 694, 2003 Bankr. LEXIS 1414 (Bankr. S.D. Ga. 2003).

Conditions precedent to collection of attorney’s fees include notice to debtor that collection be made by attorney at law, that debt has matured, that contract included an obligation to pay attorney’s fees, and that required ten-days notice has been given and period has expired without payment of principal and interest in full. GECC v. Brooks, 242 Ga. 109 , 249 S.E.2d 596 , 1978 Ga. LEXIS 1119 (1978).

Conditions precedent to recovery of attorney’s fees under paragraph (a)(3) are: that collection be made by an attorney at law, that debt has matured, that contract included obligation to pay attorney’s fees and that required ten-days notice has been given and the ten-day period has expired without payment of principal and interest in full; there must be full compliance with these conditions before a creditor may collect attorney’s fees. Fidelity Nat'l Bank v. Walsey, 7 Bankr. 779, 1980 Bankr. LEXIS 3909 (Bankr. N.D. Ga. 1980).

Under O.C.G.A. § 13-1-11 , the conditions precedent to recovery of contractual attorney’s fees are: (1) the contract must include an obligation to pay attorney’s fees; (2) the debt must have matured; (3) notice must be given to the debtor informing the debtor that the debtor has ten days within receipt to pay the debt in order to avoid attorney’s fees; (4) the ten-day period must expire without payment of principal and interest in full; and (5) the debt must be collected by or through an attorney-at-law. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211, 1981 Bankr. LEXIS 4873 (Bankr. N.D. Ga. 1981).

Notification and opportunity to tender the amount due seem to be the basic requirements contemplated by paragraph (a)(3) of O.C.G.A. § 13-1-11 . Carlos v. Murphy Whse. Co., 166 Ga. App. 406 , 304 S.E.2d 439 , 1983 Ga. App. LEXIS 2189 (1983).

Contractual obligations for the payment of attorney fees representing 15 percent of the indebtedness owed are valid and enforceable where the contract contains such a provision, the debt has matured, notice was given the debtor that the debtor has 10 days to pay the debt, the 20-day period has expired, and the debt is collected by or through an attorney. Dickens v. Calhoun First Nat'l Bank, 197 Ga. App. 517 , 398 S.E.2d 814 , 1990 Ga. App. LEXIS 1363 (1990).

Because all defendants received notice of the bank’s intent to enforce the “Collection Costs and Attorney’s Fees” provision of a delinquent note and were given ten days to pay in full, the bank was entitled to attorney’s fees and costs as allowed under O.C.G.A. § 13-1-11 in the amount of 15% of the total principal and accrued interest as of the date of judgment. Bank of Ozarks v. Kingsland Hospitality, LLC, No. 4:11-cv-237, 2012 U.S. Dist. LEXIS 144666 (S.D. Ga. Oct. 5, 2012).

Actual collection of debt is one condition precedent in paragraph (a)(3) to enforcement of contractual provisions for payment of attorney’s fees. Fidelity Nat'l Bank v. Walsey, 7 Bankr. 779, 1980 Bankr. LEXIS 3909 (Bankr. N.D. Ga. 1980).

Before contractual attorney’s fees may be recovered, the debt must be collected by or through an attorney-at-law. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211, 1981 Bankr. LEXIS 4873 (Bankr. N.D. Ga. 1981).

Actual collection of an indebtedness is not required. O.C.G.A. § 13-1-11 simply requires that the creditor place the matter in the hands of an attorney and that the attorney subsequently take action to enforce the debt. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211, 1981 Bankr. LEXIS 4873 (Bankr. N.D. Ga. 1981).

Attorney fees are only collectable where debt is collected by or through an attorney. Citizens & S. Nat'l Bank v. Bougas, 149 Ga. App. 722 , 256 S.E.2d 37 , 1979 Ga. App. LEXIS 2003 (1979), rev'd, 245 Ga. 412 , 265 S.E.2d 562 , 1980 Ga. LEXIS 810 (1980), vacated, 154 Ga. App. 392 , 268 S.E.2d 450 , 1980 Ga. App. LEXIS 2187 (1980).

Collection by or through an attorney. —

Notes were “collected by or through an attorney” within the meaning of O.C.G.A. § 13-1-11 so as to entitle creditors to attorney fees where debtors did not pay within the required ten days, a nonjudicial foreclosure proceeding was instituted and pursued by the creditors until the debtors’ filing of bankruptcy, and a consent decree in a proceeding between the creditors and the debtors for the sequestration of rents provided for the full amount of the principal due as well as interest. Mills v. East Side Investors, 694 F.2d 242, 1982 U.S. App. LEXIS 23190 (11th Cir. 1982).

Reduction in balance owing by sale is not “by and through an attorney after maturity”. —

Where the balance owing at the time of default is reduced by the sale of collateral, that reduction was not collected “by and through an attorney after maturity” within the meaning of O.C.G.A. § 13-1-11 and is not to be included in the amount of deficiency upon which the attorney fees are based. David v. ITT Diversified Credit Corp., 174 Ga. App. 910 , 332 S.E.2d 8 , 1985 Ga. App. LEXIS 1996 (1985).

Nonjudicial foreclosure stayed in bankruptcy meets collection requirement. —

The initiation of a nonjudicial foreclosure which is later stayed when the debtor files for bankruptcy satisfies the collection requirement. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211, 1981 Bankr. LEXIS 4873 (Bankr. N.D. Ga. 1981).

Both stipulation for attorney’s fees and compliance with statutory requirements prerequisite to recovery. —

Promise to pay attorney’s fees may not of itself be sufficient to entitle plaintiff to a judgment therefor, but without such promise, fees could not be recovered in suit on note. With promise, fees may be collected upon compliance with statutory conditions. Browne v. Edwards, 122 Ga. 277 , 50 S.E. 110 , 1905 Ga. LEXIS 174 (1905).

Section inapplicable absent preexisting agreement to pay attorney’s fees. —

Like Ga. L. 1935, p. 381, § 2 (see O.C.G.A. § 44-14-162 ), regulating sales under powers in security deeds, former Code 1933, § 20-506 (see O.C.G.A. § 13-1-11 ) did not come into play in absence of preexisting agreement between parties to pay attorney’s fees upon note or other evidence of indebtedness. Global Indus., Inc. v. Harris, 376 F. Supp. 1379, 1974 U.S. Dist. LEXIS 8408 (N.D. Ga. 1974).

Promissory notes authorizing attorney fees when note is collected by and through attorney are valid, enforceable, and collectible. Camacho v. First S. Homeowners Co., 160 Ga. App. 491 , 287 S.E.2d 327 , 1981 Ga. App. LEXIS 3157 (1981).

Attorney fees recoverable where provided for in note and where proper notice given. —

When note provides for payment of attorney’s fees and proper notice of intention to sue is given as required by law, the attorney fees are recoverable. Harrison v. Harrison, 208 Ga. 70 , 65 S.E.2d 173 , 1951 Ga. LEXIS 544 (1951).

Demand letter not requesting attorney fees. —

Trial court erred in awarding attorney fees because plaintiff’s demand letter contained absolutely no reference to the attorney fees provision in the promissory note or to any claim for attorney fees. Quintanilla v. Rathur, 227 Ga. App. 788 , 490 S.E.2d 471 , 1997 Ga. App. LEXIS 927 (1997).

Proper demand notice had to be in writing, to the party sought to be held on the obligation, after maturity, to state that the provisions relative to payment of attorney fees in addition to principal and interest would be enforced, and to state that the party had 10 days from the receipt of such notice to pay the principal and interest without the attorney fees. Trust Assoc. v. Snead, 253 Ga. App. 475 , 559 S.E.2d 502 , 2002 Ga. App. LEXIS 120 (2002).

Trial court properly granted the lender summary judgment and awarded the lender attorney fees pursuant to O.C.G.A. § 13-1-11 in a mortgage foreclosure action because the borrower failed to satisfy the matured principal and interest due on the delinquent payments within 10 days of any of the demand letters; consequently, after the expiration of 10 days, the borrower’s total obligation included the matured principal and interest obligation as well as attorney fees under § 13-1-11 . Austin v. Bank of Am., N.A., 293 Ga. 42 , 743 S.E.2d 399 , 2013 Ga. LEXIS 450 (2013).

Contract for attorney’s fees nullified by payment in full within ten days after notice is given; no provision is made as to when, with relation to bringing of suit, notice must be given to be effective. Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, 257 F.2d 162, 1958 U.S. App. LEXIS 4460 (5th Cir. 1958).

Tender necessary to avoid attorney’s fees. —

Tender means tender of principal, interest, and costs. Tender of principal and interest conditioned upon plaintiff paying costs is insufficient to avoid paying attorney’s fees where plaintiff complies with law. Donovan v. Hogan, 8 Ga. App. 754 , 70 S.E. 153 , 1911 Ga. App. LEXIS 132 (1911).

Hearing not required when statutory formula used. —

Where the amount of attorney fees to be awarded is subject to computation by using either without variance, or by substantially complying with, the unambiguous statutory formula of paragraph (a)(2) O.C.G.A. § 13-1-11 , a hearing is not required merely to effect this computation. Woods v. General Elec. Credit Auto Lease, Inc., 187 Ga. App. 57 , 369 S.E.2d 334 , 1988 Ga. App. LEXIS 572 (1988).

Award of fees in arbitration of promissory note not required. —

Where it was undisputed that a party complied with the statutory conditions of O.C.G.A. § 13-1-11(a) , the trial court’s failure to award separate attorney fees in connection with arbitration of a promissory note did not constitute reversible error; in the absence of evidence to the contrary, the trial court deemed that the attorney fees awarded by the arbitration panel were sufficient to compensate the party for all issues pursued in the party’s complaint. Phillips v. TermNet of N.M., Inc., 260 Ga. App. 645 , 580 S.E.2d 544 , 2003 Ga. App. LEXIS 268 (2003), cert. denied, No. S03C0988, 2003 Ga. LEXIS 558 (Ga. June 9, 2003), rev'd, 277 Ga. 342 , 588 S.E.2d 745 , 2003 Ga. LEXIS 945 (2003).

Amount of judgment is determinative for direct appeal. —

Appellate court properly dismissed an attorney’s direct appeal in a case wherein the attorney sued a client for attorney fees as the judgment the attorney recovered was one for damages in an amount under $10,000, and as such, it was subject to appeal as a matter of discretion under O.C.G.A. § 5-6-35(a)(6), rather than of right. The failure of the attorney to recover on the claims of prejudgment interest or attorney fees did not transform the judgment into a finding on liability adverse to the attorney so as to render appeal of the matter outside the ambit of § 5-6-35(a)(6). Cooney v. Burnham, 283 Ga. 134 , 657 S.E.2d 239 , 2008 Ga. LEXIS 134 (2008).

Application

Applicable to obligation to pay attorney’s fees embodied in mortgage. —

Obligation to pay attorney’s fees, embodied in mortgage is collectable in same manner as if the obligation were contained in note or other evidence of indebtedness. Sheffield v. Bainbridge Oil Co., 3 Ga. App. 200 , 59 S.E. 725 , 1907 Ga. App. LEXIS 594 (1907).

When section complied with, obligation of deed to secure debt includes attorney’s fees. —

If holder complies with section’s requirement, liability for attorney’s fees becomes a part of indebtedness, and obligation of deed given to secure original debt extends to and includes attorney’s fees. Consequently, one entitled to special lien for purchase money upon described real estate is entitled also to lien for amount of any attorney’s fees to which debtor may be legally subject. Guarantee Trust & Banking Co. v. American Nat'l Bank, 15 Ga. App. 778 , 84 S.E. 222 , 1915 Ga. App. LEXIS 61 (1915).

If suit on note barred, claim for attorney fees also barred. —

As recovery on a second promissory note was barred by the creditor’s failure to seek judicial confirmation under O.C.G.A. § 44-14-161(a) of the foreclosure sale associated with the first note, the creditor was not entitled to attorney fees under O.C.G.A. § 13-1-11(a) . Iwan Renovations, Inc. v. N. Atlanta Nat'l Bank, 296 Ga. App. 125 , 673 S.E.2d 632 , 2009 Ga. App. LEXIS 159 (2009).

Requirements of section applicable where collection sought by process of attachment. Walton v. Hines, 40 Ga. App. 757 , 151 S.E. 558 , 1930 Ga. App. LEXIS 688 (1930).

Endorsers are liable for attorney fees. Riverside Milling & Power Co. v. Bank of Cartersville, 141 Ga. 578 , 81 S.E. 892 , 1913 Ga. LEXIS 279 (1913).

Guaranty contracts are within scope of statute. FDIC v. Willis, 497 F. Supp. 272, 1980 U.S. Dist. LEXIS 17238 (S.D. Ga. 1980).

National bank may recover attorney fees on note made to the bank. Young v. First Nat'l Bank, 22 Ga. App. 58 , 95 S.E. 381 , 1918 Ga. App. LEXIS 147 (1918).

Credit card processor’s suit to collect losses. —

Trial court improperly calculated attorney fees and expenses under O.C.G.A. § 13-1-11 since there was no evidence of a note or other indebtedness involved in the credit card processor’s suit to collect losses under an indemnity agreement with the bank’s predecessor. Colonial Bank v. Boulder Bankcard Processing, Inc., 254 Ga. App. 686 , 563 S.E.2d 492 , 2002 Ga. App. LEXIS 437 (2002).

Debt collection suit involving credit card. —

In a debt collection suit, a bank was properly granted summary judgment against a credit cardholder because, despite the cardholder signing the cardholder agreement while part of a corporation, the agreement clearly provided that the credit cardholder was individually and personally liable for the outstanding debt and the bank had provided the requisite notice for the collection of attorney fees. Grot v. Capital One Bank (USA), N. A., 317 Ga. App. 786 , 732 S.E.2d 305 , 2012 Ga. App. LEXIS 785 (2012), cert. denied, No. S13C0231, 2013 Ga. LEXIS 123 (Ga. Feb. 4, 2013).

Provision of lease agreement enforceable. —

A provision in a lease agreement providing for recovery of attorney fees in any action brought to enforce any term, covenant, or condition of the lease was enforceable under O.C.G.A. § 13-1-11 . Georgia Color Farms, Inc. v. K.K.L., Ltd. Partnership, 234 Ga. App. 849 , 507 S.E.2d 817 , 1998 Ga. App. LEXIS 1321 (1998), cert. denied, No. S99C0293, 1999 Ga. LEXIS 185 (Ga. Feb. 19, 1999).

Failure of landlord to give notice under O.C.G.A. § 13-1-11 did not preclude the grant of attorneys fees because the plain terms of the lease authorized the award of attorneys fees, expenses, and costs. Ins. Indus. Consultants, Inc. v. Essex Invs., Inc., 249 Ga. App. 837 , 549 S.E.2d 788 , 2001 Ga. App. LEXIS 641 (2001), cert. denied, No. S01C1429, 2001 Ga. LEXIS 888 (Ga. Nov. 5, 2001).

O.C.G.A. § 13-1-11(a) did not apply in a lessor’s suit against a lessee, and instead, the attorney’s fee provisions of the lease applied; although the lessor sought to recover rent due, the lessor also sought a declaration as to the enforceability of an exclusivity clause in the lease, which would have allowed the lessee to terminate the lease or to pay a reduced rent if the lessee was not found to have waived the enforceability of the exclusivity clause. Cascade Crossing II, LLC v. Radioshack Corp., 446 F. Supp. 2d 1348, 2006 U.S. Dist. LEXIS 67573 (N.D. Ga. 2006), vacated, 534 F.3d 1375, 2008 U.S. App. LEXIS 15289 (11th Cir. 2008).

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 Ga. App. LEXIS 535 (2007), cert. denied, No. S07C1799, 2007 Ga. LEXIS 749 (Ga. Oct. 9, 2007).

Trial court did not err in awarding attorney fees and expenses to landlords because the landlords prevailed in a tenant’s breach of contract action; pursuant to the tenant’s lease agreement, the “prevailing party” in any litigation to enforce a right or collect sums due under the lease could recover reasonable attorney fees and litigation expenses, and the trial court awarded fees and expenses after concluding that the landlords were the prevailing parties. Office Depot, Inc. v. Dist. at Howell Mill, LLC, 309 Ga. App. 525 , 710 S.E.2d 685 , 2011 Ga. App. LEXIS 381 (2011).

Applies to commercial lease. —

O.C.G.A. § 13-1-11 applies to a commercial lease and limits the award of attorney’s fees recoverable by the landlord where past due rent is recovered and the only other relief is declaratory and governs the future enforceability or amount of the tenant’s rent obligation. RadioShack Corp. v. Cascade Crossing II, LLC, 282 Ga. 841 , 653 S.E.2d 680 , 2007 Ga. LEXIS 788 (2007).

Statutory cap on attorneys’ fees in O.C.G.A. § 13-1-11 applied so as to cap a lessor’s attorneys’ fees in a suit seeking a declaration as to the enforceability of part of a commercial lease agreement and to recover back rent, and thus, the lessor, as the prevailing party, was not able to recover the larger sum of attorneys’ fees that were provided for in the lease agreement. Cascade Crossing II, LLC v. Radioshack Corp., 534 F.3d 1375, 2008 U.S. App. LEXIS 15289 (11th Cir. 2008).

Term “evidence of indebtedness” in O.C.G.A. § 13-1-11 applied to a commercial lease and limited the landlord’s recovery of attorney’s fees, even though the lease provided that the landlord was entitled to recover all attorney’s fees incurred, and the landlord in this case had a contingency fee agreement with the landlord’s counsel. Best v. CB Decatur Court, LLC, 324 Ga. App. 403 , 750 S.E.2d 716 , 2013 Ga. App. LEXIS 854 (2013).

Executor empowered to borrow money may stipulate for payment of attorney’s fees. —

Power of executor to borrow money implies power to secure the money by note, stipulating for payment of attorney fees. Fletcher v. American Trust & Banking Co., 111 Ga. 300 , 36 S.E. 767 , 1900 Ga. LEXIS 532 (1900).

Guaranty contract is evidence of indebtedness. Goldstein v. Ipswich Hosiery Co., 104 Ga. App. 500 , 122 S.E.2d 339 , 1961 Ga. App. LEXIS 730 (1961).

It is immaterial that agreement to pay attorney’s fees was in deed and not note; for the law applies to any obligation, in note or elsewhere, to pay upon note attorney’s fees in addition to stipulated rate of interest. Demere v. Germania Bank, 116 Ga. 317 , 42 S.E. 488 , 1902 Ga. LEXIS 93 (1902).

Provision for attorney’s fees in guaranty contract enforceable upon giving required notice. —

When undertaking of guarantor is to pay for goods sold by creditor to debtor to extent of specified sum, and in addition to pay ten percent on indebtedness as attorney’s fees in event of suit, amount stipulated as attorney’s fees is recoverable from guarantor on giving statutory notice. Sheppard v. Daniel Miller Co., 7 Ga. App. 760 , 68 S.E. 451 , 1910 Ga. App. LEXIS 506 (1910).

When notice required by O.C.G.A. § 13-1-11 was given and the amount of attorney fees was calculated solely on the principal amount due on the note at the time of default and suit for collection against two guarantors, calculation of the attorney fees was unaffected by any subsequent payments made by one of the guarantors under a settlement agreement. Groover v. Commercial Bancorp, 220 Ga. App. 13 , 467 S.E.2d 355 , 1996 Ga. App. LEXIS 68 (1996), cert. denied, No. S96C0835, 1996 Ga. LEXIS 547 (Ga. Apr. 25, 1996).

Decedent’s estate liable for attorney’s fees for collection of decedent’s note where proper notice given. —

When provision for payment of attorney’s fees is included in note given by decedent, the decedent’s estate may be made liable therefor in suit thereon against administrator in which such fees are claimed, after notice of claim has been served as is prescribed by statute. Harris v. Powers, 129 Ga. 74 , 58 S.E. 1038 , 1907 Ga. LEXIS 310 (1907); Story v. Wolff, 21 Ga. App. 727 , 94 S.E. 899 , 1918 Ga. App. LEXIS 496 (1918); Penick Supply Co. v. Anderson, 23 Ga. App. 244 , 97 S.E. 889 , 1919 Ga. App. LEXIS 59 (1919).

Liability for attorney’s fees where property sold under power of sale. —

See Cochran v. Bank of Hancock County, 118 Ga. App. 100 , 162 S.E.2d 765 , 1958 Ga. App. LEXIS 948 (1958).

Negotiability of note not affected by provision for recovery of attorney’s fees. —

Promissory note containing words of negotiability is negotiable notwithstanding agreement in note to pay all costs of collection including ten percent attorney’s fees. Stapleton v. Louisville Banking Co., 95 Ga. 802 , 23 S.E. 81 , 1895 Ga. LEXIS 286 (1895); Jones v. Crawford, 107 Ga. 318 , 33 S.E. 51 , 1899 Ga. LEXIS 59 (1899).

Defendants admitted unpaid notes, guaranty of payment, and notice of claimed attorney fees by reason of an unclaimed certified letter addressed to the maker of the notes at a post office box, the maker having admitted having received notice from the U.S. Postal Service that the maker had a certified letter to pick up. Worth v. Alma Exch. Bank & Trust, 171 Ga. App. 748 , 320 S.E.2d 816 , 1984 Ga. App. LEXIS 2330 (1984).

Obligation mature upon exercise of right to accelerate. —

Where a lease contains clause allowing for acceleration of rent upon lessee’s default, lessee’s obligation is matured within meaning of law when lessor demands full payment of all rents. Kasum Communications, Inc. v. CPI N. Druid Co., 135 Ga. App. 314 , 217 S.E.2d 492 , 1975 Ga. App. LEXIS 1659 (1975).

Creditor’s waiver of right to recover attorney’s fees. —

As such attorney’s fees as are recoverable are in nature of liquidated damages which inure to benefit of plaintiff, and not for benefit of plaintiff’s attorney, plaintiff who has given required notice may waive right to recover fees by settling with defendant in full, or by accepting payments thereon from defendant, under agreement or understanding not to insist on liability created by notice or by failing to plead such notice. Rylee v. Bank of Statham, 7 Ga. App. 489 , 67 S.E. 383 , 1910 Ga. App. LEXIS 362 (1910).

Debtor’s insolvency under state law does not prohibit rendering of judgment for attorney’s fees. Security Mtg. Co. v. Powers, 278 U.S. 149, 49 S. Ct. 84 , 73 L. Ed. 236 , 1928 U.S. LEXIS 295 (1928) (decided under prior bankruptcy law).

Recovery of attorney’s fees not affected by appointment of receiver after notice to debtor. —

Plaintiff’s right to recover attorney’s fees not affected by fact that, after service of notice, a court of equity appointed receivers who took possession of debtor’s assets; nor is it necessary that receivers be thereafter served with statutory notice in order to fix liability for attorney’s fees. Guarantee Trust & Banking Co. v. American Nat'l Bank, 15 Ga. App. 778 , 84 S.E. 222 , 1915 Ga. App. LEXIS 61 (1915).

Limitation on fees found in paragraph (a)(2) of O.C.G.A. § 13-1-11 is inapplicable to action enforcing condominium association’s right to lien for assessments. Wehunt v. Wren's Cross of Atlanta Condominium Ass'n, 175 Ga. App. 70 , 332 S.E.2d 368 , 1985 Ga. App. LEXIS 2021 (1985).

Record supported award of attorney’s fees. See Ale-8-One of Am., Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506 , 305 S.E.2d 14 , 1983 Ga. App. LEXIS 2224 (1983).

Appellate court erred in denying creditor’s request for attorney fees based on its speculation that an arbitration award for the creditor on its action to recover on a promissory note that the debtor had executed in the creditor’s favor contained a sufficient amount to cover an attorney fee award. The creditor was entitled to recover attorney fees under O.C.G.A. § 13-1-11 because the creditor fulfilled all of the conditions for recovering attorney fees under that statute, and, thus, the courts did not have the discretion to not award those fees once the creditor had made a claim for the fees. TermNet Merch. Servs. v. Phillips, 277 Ga. 342 , 588 S.E.2d 745 , 2003 Ga. LEXIS 945 (2003).

Insurer’s right to attorney fees in counterclaim to insured’s suit. —

Insurer, who pursuant to insurance policy purchased mortgage on land covered by policy, would not be entitled to attorney fees in counterclaim to insured’s suit to recover for fire loss if insurer’s failure to pay insured’s claim was wrongful. State Farm Fire & Cas. Co. v. Jenkins, 167 Ga. App. 4 , 305 S.E.2d 801 , 1983 Ga. App. LEXIS 2373, cert. denied, 251 Ga. 596 , 310 S.E.2d 232 , 1983 Ga. LEXIS 930 (1983).

Bank was entitled to summary judgment on its claim for attorney’s fees and expenses. —

Bank was entitled to summary judgment on its claim for attorney’s fees and expenses because the bank’s complaint expressly notified the personal guarantor of a promissory note of the bank’s intent to collect attorney’s fees, unless the debt was paid off within ten days of the guarantor’s receipt of the complaint, and there was no evidence that the guarantor paid the principal and interest owed within the statutorily defined time period, despite the bank providing the guarantor with an opportunity to avoid paying fees by timely curing the default. Synovus Bank v. Huffer, No. 1:19-cv-00120-JMC, 2021 U.S. Dist. LEXIS 15370 (D.S.C. Jan. 27, 2021).

Provisions held not in conflict. —

Where a note provided for financing at 101/2 percent interest per annum, “together with the Base Charge and with all costs of collection including 15 percent as attorneys fees if collected by law or through an attorney at law. . .,” and also provided for “enforcement of rights under any of the collateral, including reasonable attorney’s fees and legal expenses,” the two provisions were not in conflict. In a suit not brought to enforce rights of collateral, but to collect the debt due on the note, the award of attorney fees equal to 15 percent of the amount owed was not erroneous. Dedousis v. First Nat'l Bank, 181 Ga. App. 425 , 352 S.E.2d 577 , 1986 Ga. App. LEXIS 2410 (1986).

Where a guaranty contract provided that a guarantor pay reasonable attorney fees actually incurred, and also stipulated that 15% of the total amount due on the note and remaining unpaid was to be deemed the “reasonable attorney fees,” the two clauses were not ambiguous when construed together, and the recovery of attorney fees not in excess of 15% of the principal and interest owed on a note was properly granted. Rodgers v. First Union Nat'l Bank, 220 Ga. App. 821 , 470 S.E.2d 246 , 1996 Ga. App. LEXIS 232 (1996), cert. denied, No. S96C1198, 1996 Ga. LEXIS 795 (Ga. May 31, 1996).

Attorney fees not recoverable in tort claim for conversion. —

Because O.C.G.A. § 13-1-11 did not authorize the recovery of attorney’s fees in any tort claim and the timber company that did the cutting was not a party to and did not sign either the deed to secure debt, the original promissory note, or any of the subsequent loan agreements, the trial court erred when the court instructed the jury as to the provisions for attorney fees under O.C.G.A. § 13-1-11 , but not when the court instructed the jury to consider whether to award the plaintiff reasonable attorney fees, to which the plaintiff was entitled under the timber conversion statute, O.C.G.A. § 51-12-51(a). AgSouth Farm Credit, ACA v. Gowen Timber Co., 336 Ga. App. 581 , 784 S.E.2d 913 , 2016 Ga. App. LEXIS 222 (2016).

Section inapplicable since contract not note or evidence of indebtedness. —

Trial court did not err in awarding attorney fees related to an attorney’s collection efforts because, in the personal services contract at issue, the attorney agreed to perform services for a doctor and the doctor agreed to compensate the attorney for those services; however, the trial court’s default judgment order erroneously awarded attorney fees pursuant to the provisions of O.C.G.A. § 13-1-11 (a), and because the contract was not a note or other evidence of indebtedness, § 13-1-11 was inapplicable. Vaughters v. Outlaw, 293 Ga. App. 620 , 668 S.E.2d 13 , 2008 Ga. App. LEXIS 1029 (2008).

Stubborn litigiousness in insurance claim. — In a suit for bad faith, O.C.G.A. § 33-4-6 was the exclusive remedy for bad faith denial of benefits; thus, the insurance company was entitled to summary judgment on any claim for attorney fees for stubborn litigiousness brought under O.C.G.A. § 13-1-11 . Montgomery v. Travelers Home & Marine Ins. Co., 360 Ga. App. 587 , 859 S.E.2d 130 , 2021 Ga. App. LEXIS 268 (2021).

No double recovery shown for separate and distinct liability findings. —

Award of attorney fees under both O.C.G.A. §§ 13-1-11 and § 13-6-11 for bad faith, stubborn litigiousness, or causing unnecessary trouble and expense, did not constitute an impermissible double recovery because the bases for the findings of liability were separate and distinct: one defendant’s contractual liability under the promissory note and the other defendant’s tort liability or equitable obligation meant the defendants were not designated to be joint tortfeasors. Bloom v. Camp, 336 Ga. App. 891 , 785 S.E.2d 573 , 2016 Ga. App. LEXIS 238 (2016).

Jury decisions. —

Under O.C.G.A. § 13-1-11 , a lender was entitled to attorney fees for redeeming the collateral securing a note; also, borrowers’ testimony that the borrowers never received letters containing O.C.G.A. § 13-1-11 language, despite proffered evidence that such letters were mailed, created a jury question, and the trial court erred in directing a verdict for the borrowers. Lovell v. Thomas, 279 Ga. App. 696 , 632 S.E.2d 456 , 2006 Ga. App. LEXIS 676 (2006).

Award vacated. —

Trial court award of attorney fees under O.C.G.A. § 13-6-11 to a bank was reversed on appeal since the appellate court determined that summary judgment should not have been granted to the bank as a result of genuine issues of fact existing as to the interpretation of the contract at issue. DJ Mortg., LLC v. Synovus Bank, 325 Ga. App. 382 , 750 S.E.2d 797 , 2013 Ga. App. LEXIS 980 (2013).

Calculation of Attorney’s Fees

Generally, attorney entitled to disbursements necessary in carrying out object of attorney’s employment. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788, 1978 U.S. Dist. LEXIS 7207 (S.D. Ga. 1978), aff'd, 620 F.2d 508, 1980 U.S. App. LEXIS 16023 (5th Cir. 1980).

If attorney’s fees are not recoverable, neither are expenses of counsel. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788, 1978 U.S. Dist. LEXIS 7207 (S.D. Ga. 1978), aff'd, 620 F.2d 508, 1980 U.S. App. LEXIS 16023 (5th Cir. 1980).

Attorney’s fees not chargeable on theory that the fees are costs independent of 15 percent maximum attorney’s fees allowed under note or security deed. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788, 1978 U.S. Dist. LEXIS 7207 (S.D. Ga. 1978), aff'd, 620 F.2d 508, 1980 U.S. App. LEXIS 16023 (5th Cir. 1980).

Fifteen percent award improper when note provided for payment of fees actually incurred. —

In a lender’s assignee’s suit against borrowers on a promissory note, because the note provided that the borrowers agreed to pay “any fee you incur” in collection, and there was no evidence as to the actual amount of attorney fees the assignee incurred in collecting the note, the trial court erred in granting the assignee 15 percent fees under O.C.G.A. § 13-1-11 . Hamilton State Bank v. Kelly Capital Invs., LLC, 335 Ga. App. 252 , 779 S.E.2d 757 , 2015 Ga. App. LEXIS 747 (2015), cert. denied, No. S16C0661, 2016 Ga. LEXIS 335 (Ga. Apr. 26, 2016).

Attorney’s fees recoverable for obtaining judgment on note are incurred by time judgment is entered. Claude A. Hinton, Jr., Inc. v. Institutional Investors Trust, 133 Ga. App. 364 , 211 S.E.2d 169 , 1974 Ga. App. LEXIS 1073 (1974).

Attorney’s fees amount to stipulated percent on principal and interest of note. Morgan v. Kiser & Co., 105 Ga. 104 , 31 S.E. 45 , 1898 Ga. LEXIS 458 (1898); Hamilton v. Rogers, 126 Ga. 27 , 54 S.E. 926 , 1906 Ga. LEXIS 305 (1906); Underwood v. Savannah Chem. Co., 18 Ga. App. 194 , 89 S.E. 154 , 1916 Ga. App. LEXIS 219 (1916).

Valid unconditional continuous tender stops running of interest. Bank of Early v. Broun, 156 Ga. App. 445 , 274 S.E.2d 802 , 1980 Ga. App. LEXIS 3059 (1980).

Absent unambiguous acceleration provision, attorney’s fees are recoverable only with respect to past-due installments. —

Where, at time of written notice of intention to collect attorney fees only five of 12 installments had fallen due, and where contract did not contain unambiguous acceleration provision, plaintiff was entitled to attorney fees only with respect to the five past due installments. Considine Co. v. Turner Communications Corp., 155 Ga. App. 911 , 273 S.E.2d 652 , 1980 Ga. App. LEXIS 2834 (1980).

Amount of attorney’s fees recoverable based on sum actually recovered. —

Plaintiff entitled to recover attorney’s fees on amount recovered, notwithstanding such recovery may be less than amount claimed to be due in suit. Harris v. Powers, 129 Ga. 74 , 58 S.E. 1038 , 1907 Ga. LEXIS 310 (1907); Livingston Bros. v. Salter, 6 Ga. App. 377 , 65 S.E. 60 , 1909 Ga. App. LEXIS 303 (1909); Smith v. Baker, 137 Ga. 298 , 72 S.E. 1093 , 1911 Ga. LEXIS 391 (1911).

Contract for fees. —

Trial court erred in awarding, in a claim based on a contract which provided for payment of attorney fees without specifying any percentage, $14,349 for attorney fees on a total contract claim of $102,833. Ahmad v. Excell Petroleum, Inc., 276 Ga. App. 167 , 623 S.E.2d 6 , 2005 Ga. App. LEXIS 1136 (2005), cert. denied, No. S06C0505, 2006 Ga. LEXIS 275 (Ga. Apr. 25, 2006).

Trial court did not err in granting a mortgagee summary judgment in an action following a foreclosure sale on the issue of attorney’s fees because there were no genuine issues of material fact as to the amount of attorney fees owed; because the agreement to pay attorney fees of 15 percent of the principal and interest was enforceable, the amount to be awarded was only a matter of mathematical calculation. Cmty. Marketplace Props., LLC v. Suntrust Bank, 303 Ga. App. 403 , 693 S.E.2d 602 , 2010 Ga. App. LEXIS 367 (2010).

In a lender’s suit to enforce personal guaranties, the guarantor pointed to no evidence to create a genuine fact dispute as to the amount due, and the lender was entitled to attorney’s fees based on the attorney’s fees provision in the floorplans. Nissan Motor Acceptance Corp. v. Sowega Motors, Inc., No. 4:10-CV-111, 2012 U.S. Dist. LEXIS 128854 (M.D. Ga. Sept. 11, 2012).

Language in a promissory note entitled the holder to recover 15 percent of the principal plus interest as attorney’s fees: the note provided that the debtor was required to pay “that amount,” which included the “costs of collection” and “15 percent of the principal plus accrued interest fees.” The phrase “that amount” did not limit the award to only those costs actually incurred. First Citizens Bank & Trust Co. v. River Walk Farm, L.P., 591 Fed. Appx. 590 (11th Cir. 2015).

If contract provides for reasonable attorney’s fees, amount to be calculated under statutory provisions. Carter v. Whatley, 97 Ga. App. 10 , 101 S.E.2d 899 , 1958 Ga. App. LEXIS 690 (1958).

Since a note provided for attorney’s fees of 15 percent if the note were placed in the hands of an attorney for collection but also provided for “reasonable attorney’s fees” if the note were not paid at maturity, the note would be construed to provide that attorney fees would be awarded in the amount of 15 percent of the principal and interest owed. Davenport v. Nance, 194 Ga. App. 313 , 390 S.E.2d 281 , 1990 Ga. App. LEXIS 63 (1990), cert. denied, No. S90C0636, 1990 Ga. LEXIS 802 (Ga. Mar. 1, 1990).

When agreement provides only for 15 percent ceiling on attorney’s fees, paragraph (2) determines amount. —

When attorney fees provision placed 15 percent limit on attorney fees, but did not provide for attorney’s fees in some specific percent, attorney fees must be determined in accordance with paragraph (2) of this section. Lakeview Memory Gardens, Inc. v. National Bank & Trust Co., 155 Ga. App. 478 , 271 S.E.2d 219 , 1980 Ga. App. LEXIS 2627 (1980) (see O.C.G.A. § 13-1-11 ).

Trial court’s grant of a default judgment to the appellee on the issue of the appellant’s liability on a promissory note was upheld but the trial court’s award of damages, interest, and attorney fees to the appellee was vacated because material conflicts in the pleadings existed that had to be resolved before the trial court could calculate the value of the stock on the day the appellee submitted the June Conversion Notice and could award that amount as damages. Pure Hospitality Solutions, Inc. v. Canouse, 347 Ga. App. 592 , 820 S.E.2d 434 , 2018 Ga. App. LEXIS 571 (2018).

Attorney fees award of 15 percent of principal plus interest proper. —

There was no error in the attorney fees award because the note provided that attorney fees could be collected at the rate of 15 percent of the principal plus interest; that amount was within the statutory range; and the company and the guarantor failed to argue that the fee award was subject to a reasonableness standard prior to the judgment. John C. Wilson Co. v. Regions Bank, 352 Ga. App. 624 , 834 S.E.2d 610 , 2019 Ga. App. LEXIS 553 (2019).

Hearing not required when statutory formula used. —

Where the amount of attorney fees to be awarded is subject to computation by using either without variance, or by substantially complying with, the unambiguous statutory formula of paragraph (a)(2) of O.C.G.A. § 13-1-11 , a hearing is not required merely to effect this computation. Woods v. General Elec. Credit Auto Lease, Inc., 187 Ga. App. 57 , 369 S.E.2d 334 , 1988 Ga. App. LEXIS 572 (1988).

Debtor cannot lessen liability by showing actual attorney’s fees were less than percent stipulated. —

Where note provided for ten percent attorney’s fees, defendant cannot lessen the defendant’s liability by setting up fact that plaintiff actually contracted with the plaintiff’s attorney for a less sum. Bank of Lumpkin v. Farmers' State Bank, 35 Ga. App. 340 , 133 S.E. 307 , 1926 Ga. App. LEXIS 711 (1926).

Fees to homeowners’ association. —

Trial court’s award of attorney fees in a foreclosure action was affirmed because O.C.G.A. § 13-1-11 did not apply here to limit the attorney fees award; thus, the trial court did not err in awarding reasonable attorney fees pursuant to the declaration governing the homeowners’ association. Northside Bank v. Mountainbrook of Bartow County Homeowners Ass'n, 338 Ga. App. 126 , 789 S.E.2d 378 , 2016 Ga. App. LEXIS 449 (2016).

Trial court erred in failing to reduce attorney fees awarded by jury. —

Trial court erred in failing to reduce the amount of attorney fees a jury awarded a lessor pursuant to O.C.G.A. § 13-1-11 because the jury found that lessees owed $103,954 in unpaid rent under the lease contract and awarded the lessor $67,734 in attorney fees, but under § 13-1-11 (a)(1), the maximum recovery under the lease, where the principal owing had been found to be $103,954, was limited to 15 percent of that amount, or $15,593. Level One Contact, Inc. v. BJL Enters., LLC, 305 Ga. App. 78 , 699 S.E.2d 89 , 2010 Ga. App. LEXIS 649 (2010), cert. denied, No. S10C1835, 2011 Ga. LEXIS 71 (Ga. Jan. 13, 2011).

Improper calculation. —

Because a trust, as holder of a promissory note and deed to secure a debt owed by a husband and a wife, presented uncontroverted evidence of the amount of interest accrued on the unpaid principal balance as of the day after the last payment made until the day before trial began, and the reasonable attorney fees awarded did not match the amount the trust was entitled to under O.C.G.A. § 13-1-11(a)(2), the amount the trial court awarded as to both were reversed. Toombs v. Meyer M. Cardin Living Trust #2, 279 Ga. App. 682 , 632 S.E.2d 410 , 2006 Ga. App. LEXIS 623 (2006).

Calculation proper. —

Amount of attorney fees awarded to a business seller was permissible under O.C.G.A. § 13-1-11 , which applied when a promissory note provided for reasonable attorney fees without giving a specific percentage. The trial court awarded attorney fees of $13,259.75, which was 15 percent of $500 plus 10 percent of $131,847.54, the judgment plus prejudgment interest. A & B Blind & Drapery Co. v. B & B Glass & Storefronts, Inc., 298 Ga. App. 210 , 679 S.E.2d 782 , 2009 Ga. App. LEXIS 640 (2009).

Bankruptcy Proceedings

Section 506(b) of Bankruptcy Code preempts O.C.G.A. § 13-1-11 . —

See First Fed. Sav. & Loan Ass'n v. Standard Bldg. Assocs., 85 Bankr. 644, 1988 Bankr. LEXIS 528 (Bankr. N.D. Ga. 1988); Welzel v. Advocate Realty Invs., LLC, 255 F.3d 1266, 2001 U.S. App. LEXIS 14404 (11th Cir.), vacated, 260 F.3d 1284, 2001 U.S. App. LEXIS 17442 (11th Cir. 2001).

Bankruptcy does not affect vested attorney fees. —

The filing of a petition for reorganization under Chapter XII ( 11 U.S.C. § 1201 et seq.) of the Bankruptcy Act does not diminish the debtor’s obligation to pay attorney fees if vested when the petition is filed. Mills v. East Side Investors, 702 F.2d 214, 1983 U.S. App. LEXIS 29136 (11th Cir. 1983).

Attorney’s fees not lien where debt is cured and reinstated in bankruptcy. —

Statutory attorney’s fees, as contemplated by O.C.G.A. § 13-1-11 , do not become a lien against secured property where a default on an underlying obligation is cured and reinstated pursuant to provisions of the Bankruptcy Code (11 U.S.C.). Midland Mut. Life Ins. Co. v. Masnorth Corp., 28 Bankr. 892, 1983 Bankr. LEXIS 6469 (Bankr. N.D. Ga. 1983).

Where a mortgage debt is cured and reinstated, the debt is not mature within the meaning of O.C.G.A. § 13-1-11 and statutory attorney’s fees do not attach as a lien against the subject property. Midland Mut. Life Ins. Co. v. Masnorth Corp., 36 Bankr. 335, 1984 Bankr. LEXIS 6460 (Bankr. N.D. Ga. 1984).

Cure and reinstatement in a Chapter 11 ( 11 U.S.C. § 1201 et seq.) bankruptcy proceeding return the parties to a point in time prior to the default and acceleration and remove any claim for Georgia statutory attorney’s fees on the accelerated debt. In re Centre Court Apts., Ltd., 85 Bankr. 651, 1988 Bankr. LEXIS 547 (Bankr. N.D. Ga. 1988).

Perfection of right to fees constitutes preference. —

A creditor’s act of perfecting the creditor’s right to fees under O.C.G.A. § 13-1-11 constituted a preference subject to avoidance in bankruptcy under 11 U.S.C. § 547(b) . Homestead Partners, Ltd. v. Condor One, Inc., 200 Bankr. 274, 1996 Bankr. LEXIS 1116 (Bankr. N.D. Ga. 1996).

Applicability of section to Chapter 13 bankruptcy plan. —

To allow attorney’s fees sought by a creditor would effectively destroy success of debtor’s Chapter 13 ( 11 U.S.C. § 1301 et seq.) bankruptcy plan resulting in denial of debtor’s “fresh start.” To allow such a windfall would also eliminate any possibility of payment of one hundred cents on the dollar under the plan to other creditors. Overriding equitable principles require that attorney’s fees be denied in such circumstances, particularly in light of fact that such would amount to a windfall, would deny debtor a fresh start, and would be detrimental to other creditors. Burns v. Home Fed. Sav. & Loan Ass'n, 16 Bankr. 757, 1982 Bankr. LEXIS 5004 (Bankr. M.D. Ga. 1982).

Bankruptcy court’s conclusion that appellee debtors did not file the debtor’s bankruptcy actions in bad faith was not an abuse of discretion because: (1) it was not a single asset case; (2) the case was not just a dispute between appellant creditor and appellees; (3) appellees did not have employees; and (4) at the time of filing, appellees were each in financial distress and filed for bankruptcy for the legitimate purposes of preserving equity and allowing for an orderly distribution of the debtor’s property to creditors. Contrary to appellant’s argument, appellees did not file for bankruptcy solely to avoid paying statutory attorney’s fees pursuant to O.C.G.A. § 13-1-11 . First Bank of Ga. v. Lamb (In re Lamb), No. 11-11522, No. CV 112-011, 2012 U.S. Dist. LEXIS 74158 (S.D. Ga. May 29, 2012).

Bankruptcy court deferred ruling on the creditor’s request for attorney’s fee because, although the cardholder agreement provided for payment of the creditor’s attorney fees and costs, there was no evidence that the creditor complied with the requirements of O.C.G.A. § 13-1-11(a)(3). Fleet Credit Card Servs., L.P. v. Kendrick, 314 Bankr. 468, 2004 Bankr. LEXIS 844 (Bankr. N.D. Ga. 2004).

Failure to show right to attorney’s fees. —

In bankruptcy proceedings, creditor failed to show at trial that the ten-day letter giving notice of intent to enforce the attorney’s fees provision in loan documents was sent and therefore failed to show that the creditor’s right to attorney’s fees was vested when the bankruptcy case was filed. Chrysler Credit Corp. v. Smith, 143 Bankr. 284, 1992 Bankr. LEXIS 1163 (Bankr. M.D. Ga. 1992).

When a creditor was granted summary judgment on the creditor’s complaint to determine dischargeability of a debt owed by a debtor who had filed for bankruptcy, yet there was no evidence that the creditor had complied with O.C.G.A. § 13-1-11(a)(3), the creditor was given 30 days to file proof of the creditor’s compliance; failure to file such proof would result in denial of the creditor’s request for attorney’s fees and costs. Fleet Credit Card Servs., L.P. v. Kendrick, 314 Bankr. 468, 2004 Bankr. LEXIS 844 (Bankr. N.D. Ga. 2004).

In an action in which a creditor successfully brought an action of nondischargeability of certain credit card debt against a Chapter 7 debtor, the creditor was not entitled to attorney fees under the terms of the cardholder agreement unless it provided evidence that it had complied with the terms of O.C.G.A. § 13-1-11(a)(3), which required 10 days written notice to debtor of the amount due and creditor’s intent to enforce the contractual attorney fee provision. FDS Nat'l Bank v. Alam (In re Alam), No. A03-96116-PWB, No. 03-6465, 2005 Bankr. LEXIS 788 (Bankr. N.D. Ga. Feb. 28, 2005).

Because an over-secured creditor’s claim for attorney’s fees was unenforceable against the debtor under O.C.G.A. § 13-1-11 , as the creditor did not satisfy the notice requirements, then its claim for attorney’s fees was not allowed under 11 U.S.C. § 502(b) (1) and could not be part of its secured claim under 11 U.S.C. § 506(b) . In light of the disallowance under 11 U.S.C. § 502(b) (1), it was unnecessary to determine whether the fees were reasonable, and it was unnecessary to decide whether the “hanging paragraph” of 11 U.S.C. § 1325(a) precluded an over-secured creditor from recovering attorney’s fees under 11 U.S.C. § 506(b) . Southeastern Bank v. McCarty (In re McCarty), No. 06-50998, 2007 Bankr. LEXIS 4741 (Bankr. S.D. Ga. Sept. 20, 2007).

Unpublished decision: Over-secured creditor was not entitled to attorney fees from a bankruptcy debtor since the creditor failed to comply with the state-law requirement to provide notice of the creditor’s intent to enforce the attorney fees provision in its contract with the debtor and, thus, the creditor’s claim to attorney fees was unenforceable under applicable non-bankruptcy law. In re Snow, No. 04-30995, 2005 Bankr. LEXIS 3592 (Bankr. S.D. Ga. Aug. 25, 2005).

Attorney’s fees award despite failing to comply with notice. —

Oversecured creditor was entitled to an award of post-petition attorney fees under 11 U.S.C. § 506(b) even when the creditor failed to comply with the notice requirements of O.C.G.A. § 13-1-11 because the contractually set attorney’s fees did not have to pass through the two-step inquiry of 11 U.S.C. §§ 502 and 506. JP Morgan Chase Bank v. ELL 11, LLC, 414 Bankr. 881, 2008 U.S. Dist. LEXIS 84190 (M.D. Ga. 2008).

Over-secured creditor whose claim had been allowed under 11 U.S.C. § 502 could recover reasonable attorney’s fees incurred post-petition to protect and enforce the creditor’s claim, pursuant to 11 U.S.C. § 506 (b) , because the fees were provided for in an underlying security agreement and the 10-day notice requirement of O.C.G.A. § 13-1-11 did not apply to a claim for fees under 11 U.S.C. § 506 of the United States Bankruptcy Code. In re Amron Techs., Inc., 376 Bankr. 49, 2007 Bankr. LEXIS 3234 (Bankr. M.D. Ga. 2007).

Creditor’s mailing of a ten-day letter pursuant to O.C.G.A. § 13-1-11 constituted a preferential transfer under the Bankruptcy Code. Condor One, Inc. v. Homestead Partners, Ltd., 201 Bankr. 1014, 1996 Bankr. LEXIS 1355 (Bankr. N.D. Ga. 1996).

Notice

1.In General

Purpose of notice requirement. —

One purpose of legislature, in providing that debtor should have ten days’ notice of creditor’s intention to sue the debtor, was to give debtor opportunity of paying note, and thus relieving the debtor of attorney’s fees and costs. Edenfield v. Bank of Millen, 7 Ga. App. 645 , 67 S.E. 896 , 1910 Ga. App. LEXIS 443 (1910).

Legislative purpose of notice required by paragraph (a)(3) is that before obligation for attorney’s fees, somewhat in nature of a penalty, can be enforced, defendant must be given notice that the defendant is about to be sued, so that the defendant might avoid both expense of attorney’s fees and trouble, inconvenience, and costs of litigation itself. Such purpose could not be served by giving of notice after resort to legal proceeding has already been taken, and costs accrued. Walton v. Hines, 40 Ga. App. 757 , 151 S.E. 558 , 1930 Ga. App. LEXIS 688 (1930).

Purpose of notice requirement of paragraph (a)(3) of this section is to allow debtor to pay principal and interest on contract within ten days from receipt of notice and relieve the debtor of liability to pay attorney’s fees. Dixie Constr. Co. v. Griffin, 104 Ga. App. 457 , 121 S.E.2d 926 , 1961 Ga. App. LEXIS 714 (1961); Gresham v. Rogers, 147 Ga. App. 189 , 248 S.E.2d 225 , 1978 Ga. App. LEXIS 2844 (1978) (see O.C.G.A. § 13-1-11 ).

Paragraph (a)(3) of this section is clearly intended to require creditor to give debtor opportunity to meet the debtor’s obligation without incurring additional expense in form of attorney fees. New House Prods., Inc. v. Commercial Plastics & Supply Corp., 141 Ga. App. 199 , 233 S.E.2d 45 , 1977 Ga. App. LEXIS 1834 (1977); GECC v. Brooks, 242 Ga. 109 , 249 S.E.2d 596 , 1978 Ga. LEXIS 1119 (1978) (see O.C.G.A. § 13-1-11 ).

Purpose of provision that refusal to accept notice is equivalent to notice. —

Provision providing that refusal to accept notice shall be equivalent of such notice was intended to limit ability of debtor to thwart by avoidance creditor’s attempt to enforce the creditor’s lawful remedies. New House Prods., Inc. v. Commercial Plastics & Supply Corp., 141 Ga. App. 199 , 233 S.E.2d 45 , 1977 Ga. App. LEXIS 1834 (1977).

Obligation regarding attorney’s fees is perfected at the expiration of ten days from service of the notice under O.C.G.A. § 13-1-11 . Bulman v. First Nat'l Bank, 165 Ga. App. 843 , 303 S.E.2d 29 , 1983 Ga. App. LEXIS 2039 (1983).

Notice applies only to attorney fees and collection of principal, interest and cost upon debt is in no way conditioned upon it. Donovan v. Hogan, 8 Ga. App. 754 , 70 S.E. 153 , 1911 Ga. App. LEXIS 132 (1911).

Attaching note or evidence of indebtedness to pleading. —

A creditor may comply with the notice requirements of paragraph (a)(3) of O.C.G.A. § 13-1-11 by attaching a copy of the note or evidence of indebtedness to the pleading. Third Century, Inc. v. Morgan, 187 Ga. App. 718 , 371 S.E.2d 262 , 1988 Ga. App. LEXIS 821 (1988).

Required statutory notice cannot be waived. Miller v. Jackson, 49 Ga. App. 309 , 175 S.E. 409 , 1934 Ga. App. LEXIS 379 (1934).

Attempt to waive notice of no effect. —

Where promissory note contains obligation to pay attorney’s fees, statutory notice which plaintiff is required to give to defendant as condition precedent to plaintiff’s right to recover attorney’s fees cannot be waived in notice, and an attempt to waive notice is unenforceable and of no effect. Miller v. Roberts, 9 Ga. App. 511 , 71 S.E. 927 , 1911 Ga. App. LEXIS 212 (1911).

If plaintiff fails to give proper notice, recovery of attorney’s fees is unauthorized. Walton v. Johnson, 213 Ga. 108 , 97 S.E.2d 310 , 1957 Ga. LEXIS 315 (1957).

In an adversary case in which a creditor moved for the entry of a default judgment and sought attorney’s fees and costs, while the contract between the creditor and the debtor might provide for payment of the creditor’s attorneys’ fees and costs, there was no evidence that the creditor complied with the notice requirements of O.C.G.A. § 13-1-11(a)(3). Springleaf Fin. Servs. v. Warner (In re Warner), No. 12-68074-WLH, No. 12-5654, 2013 Bankr. LEXIS 2236 (Bankr. N.D. Ga. Apr. 30, 2013).

Deficiencies should be challenged at trial level. —

It is incumbent on defendant to challenge any deficiencies in the letter sent in ostensible compliance with O.C.G.A. § 13-1-11 on the trial level. Dedousis v. First Nat'l Bank, 181 Ga. App. 425 , 352 S.E.2d 577 , 1986 Ga. App. LEXIS 2410 (1986).

Lien for attorney’s fees not valid until notice and opportunity to pay have been provided. Security Nat'l Bank v. Cotton, 513 F.2d 546, 1975 U.S. App. LEXIS 14575 (5th Cir. 1975).

One seeking attorney’s fees must prove compliance with notice requirement. —

Attorney’s fees, for which provision is made in promissory note, are not collectable unless it is alleged and proved that after maturity holder of note notified person sought to be bound thereon that the person had ten days from receipt of such notice to pay principal and interest without attorney’s fees. Harrison v. Arrendale, 113 Ga. App. 118 , 147 S.E.2d 356 , 1966 Ga. App. LEXIS 990 (1966).

Assuming notice set out in pleadings was proper, where appellant made no attempt to introduce notice into evidence, there was no proof of notice, and therefore, no valid claim for attorney fees. Union Commerce Leasing Corp. v. Beef 'N Burgundy, Inc., 155 Ga. App. 257 , 270 S.E.2d 696 , 1980 Ga. App. LEXIS 2549 (1980).

Burden is on entity seeking to collect attorney fees on note in default to prove that all conditions of section have been met. Citizens & S. Nat'l Bank v. Bougas, 149 Ga. App. 722 , 256 S.E.2d 37 , 1979 Ga. App. LEXIS 2003 (1979), rev'd, 245 Ga. 412 , 265 S.E.2d 562 , 1980 Ga. LEXIS 810 (1980), vacated, 154 Ga. App. 392 , 268 S.E.2d 450 , 1980 Ga. App. LEXIS 2187 (1980).

Claimant’s right to collect attorney’s fees did not vest and the debtor was not entitled to an administrative expense priority under 11 U.S.C. § 503(b) (1)(A) because the claimant did not give the debtor ten days notice that the claimant intended to enforce a provision for attorney’s fees in an assumed lease, as required under O.C.G.A. § 13-1-11 . In re Sanjeev & Rajeev, Inc., 411 Bankr. 480, 2008 Bankr. LEXIS 4200 (Bankr. S.D. Ga. 2008).

Judicial notice. —

Court could take judicial notice that the exhibit purported to be a notice of intent to seek attorney fees under paragraph (a)(3) of O.C.G.A. § 13-1-11 and was filed on a particular date; however, judicial notice could not be taken that the attached notice was, in fact, what it purported to be, notice given in compliance with paragraph (a)(3). NationsBank v. Tucker, 231 Ga. App. 622 , 500 S.E.2d 378 , 1998 Ga. App. LEXIS 491 (1998).

Notice not required for service agreements. —

Because agreements to perform accounting and other administrative services were service agreements, the provider was under no duty to notify the recipients of the provider’s intention to seek attorney fees under the contracts because O.C.G.A. § 13-1-11(a)(3)’s notice provision did not apply to service agreements. Sovereign Healthcare v. Mariner Health Care Mgmt. Co., 329 Ga. App. 782 , 766 S.E.2d 172 , 2014 Ga. App. LEXIS 782 (2014), cert. denied, No. S15C0566, 2015 Ga. LEXIS 210 (Ga. Mar. 30, 2015).

2.Who May Give and Receive Notice

Under paragraph (a)(3) of this section, notice may be given by creditor or the creditor’s attorney. Citizens & S. Nat'l Bank v. Bougas, 149 Ga. App. 722 , 256 S.E.2d 37 , 1979 Ga. App. LEXIS 2003 (1979), rev'd, 245 Ga. 412 , 265 S.E.2d 562 , 1980 Ga. LEXIS 810 (1980), vacated, 154 Ga. App. 392 , 268 S.E.2d 450 , 1980 Ga. App. LEXIS 2187 (1980) (see O.C.G.A. § 13-1-11 ).

Notice under paragraph (a)(3) of O.C.G.A. § 13-1-11 may be given to debtor’s attorney of record. —

Ten-day notice requirement necessary to enforcement of provisions for payment of attorney fees in addition to principal and interest in notes and other instruments may be complied with by proper statutory notice to debtor’s attorney of record. Farnan v. National Bank, 142 Ga. App. 777 , 236 S.E.2d 923 , 1977 Ga. App. LEXIS 2139 (1977).

Notice to obligor’s authorized attorney is equivalent of notice to obligor. Dunlap v. Citizens & S. DeKalb Bank, 134 Ga. App. 893 , 216 S.E.2d 651 , 1975 Ga. App. LEXIS 2210 (1975).

Bank becomes holder upon assignment of note. —

Where promissory note was assigned by holder to a bank as security for a loan, the bank was “holder” under O.C.G.A. § 13-1-11 and notice to the debtor from the original holder was insufficient to fulfill the requirements of paragraph (a)(3). Krapf v. Wiles, 252 Ga. 452 , 314 S.E.2d 656 , 1984 Ga. LEXIS 721 (1984).

3.Persons Entitled to Notice

Notice requirement inapplicable where third party independently assumes obligation to pay attorney’s fees. —

Notice does not apply when the creditor, not having taken from principal debtor any obligation to pay attorney’s fees, makes distinct and separate contract with third person, that if the creditor will extend credit to the debtor, and if the creditor has to expend any sum in collecting the indebtedness, the third person will repay to creditor amount so expended. Oliver Typewriter Co. v. Fielder, 7 Ga. App. 525 , 67 S.E. 210 , 1910 Ga. App. LEXIS 370 (1910) (decided under prior law).

Guarantors who endorse note entitled to required notice. —

Notwithstanding technical distinctions between guarantors and sureties, where guarantors of note did endorse the note, the law requires that the guarantors be given notice that attorney fees will be assessed if principal and interest are not paid within statutory ten-day period. Broun v. Bank of Early, 243 Ga. 319 , 253 S.E.2d 755 , 1979 Ga. LEXIS 897 (1979).

Notice to maker not prerequisite to recovery from endorsers who were given notice. —

Fact that maker of note payable to and endorsed by maker was not given notice or sued with other endorsers was no reason why judgment for attorney’s fees should not be rendered against those endorsers who were served with such notice and sued. Crawford v. Citizens & S. Bank, 20 Ga. App. 576 , 93 S.E. 173 , 1917 Ga. App. LEXIS 975 (1917).

Notice of default and intention to collect attorney’s fees puts trustee on notice. National Acceptance Co. v. Zusmann, 379 F.2d 351, 1967 U.S. App. LEXIS 5863 (5th Cir.), cert. denied, 389 U.S. 975, 88 S. Ct. 478 , 19 L. Ed. 2 d 469, 1967 U.S. LEXIS 2804 (1967).

Notice required to enforce attorney’s fee provision in deed to secure debt. —

Such obligation in deed to secure debt is unenforceable, unless notice required by section is given, and suit is brought to enforce debt secured. Moultrie Banking Co. v. Mobley, 170 Ga. 402 , 152 S.E. 903 , 1930 Ga. LEXIS 466 (1930).

Provision in security deed in respect to collection of attorney’s fees does not dispense with the notice required by paragraph (a)(3) to collect such fees. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788, 1978 U.S. Dist. LEXIS 7207 (S.D. Ga. 1978), aff'd, 620 F.2d 508, 1980 U.S. App. LEXIS 16023 (5th Cir. 1980).

Later grantee. —

Where later grantee was neither the maker nor an endorser of the promissory note originally executed and there was no evidence that the grantee or any other party ever assumed the obligation to complete the payments due under the terms of the note or was otherwise liable on the underlying obligation, grantee was not a party sought to be held liable on the note to whom notice of creditor’s intention to seek attorney’s fees on default of note should have been sent. Pendergrast v. Ewing, 158 Ga. App. 5 , 279 S.E.2d 233 , 1981 Ga. App. LEXIS 2048 (1981).

Proper notice not rendered ineffective by amending suit to change plaintiff. —

Notice is sufficient which names owner of equitable interest as holder even though suit is later amended and owner of legal title is made plaintiff. Gelders v. Kennedy, 9 Ga. App. 389 , 71 S.E. 503 , 1911 Ga. App. LEXIS 567 (1911).

Where notice indicates that suit is to be brought by holder, it is not rendered ineffectual by amendment naming assignor as plaintiff, suing for use of holder. Toole v. Cook, 15 Ga. App. 133 , 82 S.E. 772 , 1914 Ga. App. LEXIS 42 (1914).

All claimants to fund should stand on parity as to defect in notice of intent to collect attorney’s fees. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788, 1978 U.S. Dist. LEXIS 7207 (S.D. Ga. 1978), aff'd, 620 F.2d 508, 1980 U.S. App. LEXIS 16023 (5th Cir. 1980).

Expenses of claims under surety bonds. —

Claim by surety against indemnitors of surety bonds issued by surety for attorney fees which related to expenses incurred as a result of claims under surety bonds, rather than attorney fees relating to enforcement of an indemnity agreement, did not fall within the notice requirements of O.C.G.A. § 13-1-11 . Rhodes v. Amwest Sur. Ins. Co., 207 Ga. App. 441 , 428 S.E.2d 581 , 1993 Ga. App. LEXIS 238 (1993), cert. denied, No. S93C0871, 1993 Ga. LEXIS 452 (Ga. Apr. 15, 1993).

4.Timing of Notice

Section affords maker ten days to pay before suit may be filed. —

Law requires that notice give opportunity to maker to pay amount due during period of ten days before expiration of which suit may not be filed. Murdock Acceptance Corp. v. Wagnon, 587 F.2d 764, 1979 U.S. App. LEXIS 17643 (5th Cir. 1979).

Ga. L. 1967, p. 226, §§ 5 and 6 (see O.C.G.A. 9-11-6(e) ) was inapplicable to computations of time periods under former Code 1933, § 20-506 (see O.C.G.A. § 13-1-11 ). Ten-day period required was to be counted from day of receipt. Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851, 1979 U.S. App. LEXIS 12152 (5th Cir. 1979).

Failure to give notice before commencement of action does not preclude recovery of attorneys’ fees. One In All Corp. v. Fulton Nat'l Bank, 108 Ga. App. 142 , 132 S.E.2d 116 , 1963 Ga. App. LEXIS 569 (1963); McInvale v. Walter E. Heller & Co., 116 Ga. App. 71 , 156 S.E.2d 371 , 1967 Ga. App. LEXIS 698 (1967).

Separate notice in writing after maturity required. —

Trial court erred by awarding the creditors attorney fees pursuant to a promissory note because the debt instruments themselves, including the promissory note, the note modification, and the personal guarantee did not satisfy the notice requirement of O.C.G.A. § 13-1-11(a)(3); the statute plainly requires a separate notice in writing after maturity. Core LaVista, LLC v. Cumming, 308 Ga. App. 791 , 709 S.E.2d 336 , 2011 Ga. App. LEXIS 281 (2011).

Notice not required if loan not in default and not matured. —

Mortgage lender’s failure to comply with the required 10-day letter did not preclude the lender from recovering attorneys’ fees disclosed pursuant to Fed. R. Bankr. P. 3002.1 because the mortgage debt at issue was not in default and had not matured. Trudelle v. PHH Mortg. Corp. (In re Trudelle), No. 16-60382-EJC, 2017 Bankr. LEXIS 3339 (Bankr. S.D. Ga. Sept. 29, 2017).

Notice may be given after filing suit, but at least ten days before judgment. —

Whether attorney fees are claimed in suit originally, or by amendment, notice may be given after filing of suit so long as defendant is given ten days within which to pay and avoid fees prior to taking of any judgment therefor. Candler v. Orkin, 129 Ga. App. 721 , 200 S.E.2d 909 , 1973 Ga. App. LEXIS 1125 (1973).

Notice of right to pay principal and interest within ten days to avoid obligation of attorney’s fees may be given after filing of suit so long as defendant is given ten days within which to pay and avoid fees prior to taking of judgment for those fees. Swindell v. Georgia State Dep't of Educ., 138 Ga. App. 57 , 225 S.E.2d 503 , 1976 Ga. App. LEXIS 2053 (1976).

Notice of intent to enforce the attorney’s fee provisions in a promissory note does not comply with O.C.G.A. § 13-1-11 when the notice is sent after the entry of judgment in the suit on the note. Kauka Farms, Inc. v. Scott, 256 Ga. 642 , 352 S.E.2d 373 , 1987 Ga. LEXIS 577 (1987).

Effect of stay in bankruptcy on sending of demand letter. —

In event that automatic stay prevents creditor from sending demand letter to debtor as required by paragraph (a)(3) of O.C.G.A. § 13-1-11 , attorney’s fees are not perfected, and therefore do not become part of a creditor’s secured claim. Anderson v. First Nat'l Bank, 28 Bankr. 231, 1983 Bankr. LEXIS 6648 (Bankr. N.D. Ga. 1983).

Bank did not have an allowable claim for the bank’s contractual attorney fees in a bankruptcy case because the bank did not provide the debtor with the 10-day notice prior to the petition date; any effort to perfect the right to receive contractual attorney fees would have violated the automatic stay. However, because the allowance of fees under bankruptcy law was applied without reference to state law, the bank was entitled to reasonable fees, even if the contractual provision providing for such was unenforceable under state law. In re Putnal, No. 11-53874-JDW, 2013 Bankr. LEXIS 4807 (Bankr. M.D. Ga. Nov. 12, 2013).

5.Content and Form of Notice

Notice must disclose holder. —

Statutory notice given for purpose of fixing liability for attorney’s fees must disclose holder of note in whose behalf payment is demanded. Notice which does not expressly state or otherwise disclose who is holder of note upon which attorney’s fees are sought to be recovered is insufficient to be basis of judgment for attorney’s fees. Edenfield v. Bank of Millen, 7 Ga. App. 645 , 67 S.E. 896 , 1910 Ga. App. LEXIS 443 (1910); Gelders v. Kennedy, 9 Ga. App. 389 , 71 S.E. 503 , 1911 Ga. App. LEXIS 567 (1911); Elders v. Kennedy, 17 Ga. App. 463 , 87 S.E. 701 , 1916 Ga. App. LEXIS 690 (1916).

Failure to state name of holder in notice not an amendable defect. Baskins v. Valdosta Bank & Trust Co., 5 Ga. App. 600 , 63 S.E. 648 , 1909 Ga. App. LEXIS 75 (1909); Gelders v. Kennedy, 9 Ga. App. 389 , 71 S.E. 503 , 1911 Ga. App. LEXIS 567 (1911); Carey v. Wyatt, 17 Ga. App. 517 , 87 S.E. 770 , 1916 Ga. App. LEXIS 742 (1916).

One whose name is signed to notice is presumptively holder of note; and if suit thereafter be brought in that person’s name, collection of attorney’s fees cannot be defeated merely because notice did not expressly name holder of note. It is otherwise if suit be brought in name of one neither expressly nor impliedly named in notice as holder of note. Aycock v. Tillman, 14 Ga. App. 80 , 80 S.E. 301 , 1913 Ga. App. LEXIS 415 (1913); Reeves v. Lasseter, 29 Ga. App. 490 , 115 S.E. 925 , 1923 Ga. App. LEXIS 82 (1923).

Notice must be made in holder’s name by holder, agent, or attorney. Reeves v. Lasseter, 29 Ga. App. 490 , 115 S.E. 925 , 1923 Ga. App. LEXIS 82 (1923).

Notice sufficiently indicating holder. —

Notice signed by S. as attorney for B., in whose behalf suit was subsequently brought sufficiently indicated holder of note. Phelps v. Belle Isle, 29 Ga. App. 571 , 116 S.E. 217 , 1923 Ga. App. LEXIS 121 (1923).

Notice must state contract upon which it is based. Rylee v. Bank of Statham, 7 Ga. App. 489 , 67 S.E. 383 , 1910 Ga. App. LEXIS 362 (1910).

Complaint provided sufficient notice despite deficient letter. —

Notwithstanding the deficient notice in the creditor’s notice-of-default letter, the separate notice in the complaint satisfied the dictates of O.C.G.A. § 13-1-11(a)(3) as it provided notice of the creditor’s intention to enforce the provisions of the promissory note and stated that the debtor would have to pay attorney fees if the principal and interest were not paid within 10 days of receipt of the complaint. Lockwood v. FDIC, 330 Ga. App. 513 , 767 S.E.2d 829 , 2014 Ga. App. LEXIS 849 (2014).

Notice by letter may suffice. —

Notice by letter of claim for attorney fees is sufficient, if letter conveys such notice as is required by law and is timely received by defendant. Cook v. Hightower & Co., 13 Ga. App. 309 , 79 S.E. 165 , 1913 Ga. App. LEXIS 137 (1913).

Notice may be signed with typewriter. Blackwell v. Persons, 30 Ga. App. 52 , 116 S.E. 554 , 1923 Ga. App. LEXIS 246 (1923).

Difference between amount demanded and that found due. —

The notice was sufficient to satisfy the requirements of paragraph (a)(3) of O.C.G.A. § 13-1-11 even though the evidence ultimately established that the amount demanded was less than the exact amount determined to be due by the jury. Carlos v. Murphy Whse. Co., 166 Ga. App. 406 , 304 S.E.2d 439 , 1983 Ga. App. LEXIS 2189 (1983).

Commercial account due and payable. —

In a case brought under the Perishable Agricultural Commodities Act, 1930 (PACA), 7 U.S.C. § 499(a) et seq., in which: (1) a produce company’s president had defalcated within the meaning of the law on the president’s trust duties; (2) the president was personally liable to a produce wholesaler in the amount of the company’s PACA trust for the president’s failures as trustee; (3) the wholesaler’s invoices provided for interest on unpaid accounts at the rate of one and one-half percent per month; and (4) the invoices provided that the customer must pay the attorney fees and costs incurred in the collection of all past due invoices, in its grant of summary judgment in favor of the wholesaler, the district court awarded the wholesaler the principal amount that was owed; in addition, pursuant to O.C.G.A. § 13-1-11 , the wholesaler was entitled to attorney fees and under O.C.G.A. § 7-4-16 it was entitled to interest payments at the rate stated on the invoices. Cee Bee Produce, Inc. v. Tucker, No. 5:06-CV-181, 2007 U.S. Dist. LEXIS 67339 (M.D. Ga. Sept. 12, 2007).

Paragraph (a)(3) of O.C.G.A. § 13-1-11 does not require disclosure of the amount of principal and interest the debtor must pay to avoid the assessment of attorney fees. Associates Com. Corp. v. Storey, 192 Ga. App. 199 , 384 S.E.2d 265 , 1989 Ga. App. LEXIS 949 (1989).

Notice alleging note’s face value plus interest, but not exact amount owing, is valid. —

Where notice of attorney’s fees alleges face value of note in question plus interest, fact that exact amount owing is not also stated does not invalidate the notice. Shier v. Price, 152 Ga. App. 593 , 263 S.E.2d 466 , 1979 Ga. App. LEXIS 3054 (1979); Rohm & Haas Co. v. Gainesville Paint & Supply Co., 225 Ga. App. 441 , 483 S.E.2d 888 , 1997 Ga. App. LEXIS 276 (1997).

Notice effective although providing for 15 percent, while contract provides for ten percent attorney’s fees. —

Fact that notice states that contract provides for 15 percent attorney’s fees instead of ten percent as actually provided for in contract does not destroy efficacy of notice for simple reason that only amount provided in contract under 15 percent could be recovered and compliance with notice by debtor would absolve debtor of obligation to pay fees whatever percentage was. Dixie Constr. Co. v. Griffin, 104 Ga. App. 457 , 121 S.E.2d 926 , 1961 Ga. App. LEXIS 714 (1961).

Notice not stating date of note not defective where receipt admitted and debtor not misled. —

Notice was not defective for failure to set forth date of note where receipt of notice was admitted and where there was only one note or instrument executed and where recipient could not possibly have been misled or prejudiced because date of note was not stated, since in response to notice recipient tendered amount recipient claimed to be due within ten-day period from notice’s receipt. Aultman v. T.F. Taylor Fertilizer Works, Inc., 125 Ga. App. 398 , 188 S.E.2d 157 , 1972 Ga. App. LEXIS 1349 (1972).

A notice allowing more than ten days from receipt of the notice certainly complies with the intended meaning of paragraph (a)(3) of O.C.G.A. § 13-1-11 . Talmadge v. Respess, 224 Ga. App. 768 , 482 S.E.2d 709 , 1997 Ga. App. LEXIS 232 (1997).

Complaint provided sufficient notice. —

After a restaurant operator stopped making rent payments and the plaintiff sued the defendant for rent payments, re-letting costs, accrued interest, and attorneys’ fees under a guaranty agreement, the plaintiff’s complaint satisfied the notice requirements for attorneys’ fees, but attorneys’ fees needed to be recalculated on remand. ND Props. v. BLRG Rest. Grp., Inc., 649 Fed. Appx. 861, 2016 U.S. App. LEXIS 8691 (11th Cir. 2016).

Inadequate, misleading, and insufficient notice. —

Trial court erred by awarding the creditors attorney fees pursuant to a promissory note because the creditors failed to provide the debtor and the guarantor sufficient and timely notice of the creditors intent to pursue such fees, as required by O.C.G.A. § 13-1-11(a)(3); the demand letters did not satisfy the requirement because the letters did not state that the guarantor could avoid the guarantor’s obligation to pay attorney fees by curing the guarantor’s default within ten days of the notice, as required by the statute, and the complaint itself did not satisfy the notice requirement because the complaint incorporated a deficient demand letter, which did not cure the letter’s lack of notice, and rather than notifying the guarantor that the guarantor had an opportunity to avoid paying attorney fees by timely curing the default, the complaint stated the opposite, i.e., that the creditors were entitled to recover reasonably incurred attorneys’ fees. Core LaVista, LLC v. Cumming, 308 Ga. App. 791 , 709 S.E.2d 336 , 2011 Ga. App. LEXIS 281 (2011).

Language in a landlord’s complaint asserting that notice of intent to collect attorney’s fees under O.C.G.A. § 13-1-11 had been given to the tenant was not only insufficient to notify the tenant that the tenant had an opportunity to avoid paying attorney fees by timely curing the default, but the notice actually stated the opposite, i.e., that the landlord was entitled to the attorney’s fees; therefore, the notice was inadequate. Best v. CB Decatur Court, LLC, 324 Ga. App. 403 , 750 S.E.2d 716 , 2013 Ga. App. LEXIS 854 (2013).

6.Substantial Compliance

Substantial compliance with notice requirement is condition precedent to collection of attorney fees. Kennedy v. Brand Banking Co., 152 Ga. App. 47 , 262 S.E.2d 177 , 1979 Ga. App. LEXIS 2807 (1979), aff'd in part and rev'd in part, 245 Ga. 496 , 266 S.E.2d 154 , 1980 Ga. LEXIS 832 (1980), vacated in part, 154 Ga. App. 378 , 268 S.E.2d 449 , 1980 Ga. App. LEXIS 2177 (1980).

By the terms of O.C.G.A. § 13-1-11(a) , compliance with that Code section is a statutory prerequisite to collecting an otherwise valid obligation to pay attorney fees incurred in the collection on a note; if the debtor cures the debt in compliance with the requisite ten-day notice period, then the obligation to pay the attorney’s fees shall be void and no court shall enforce the agreement, O.C.G.A. § 13-1-11(a) (3), which is true as a matter of statutory law, regardless of whether the parties agreed to such a ten-day grace period and, therefore, O.C.G.A. § 13-1-11(a)(3) creates a mandatory condition precedent to the debtor’s obligation to pay attorney fees expended by the lender while collecting on a note. Core LaVista, LLC v. Cumming, 308 Ga. App. 791 , 709 S.E.2d 336 , 2011 Ga. App. LEXIS 281 (2011).

Substantial compliance with section is all that is required. GECC v. Brooks, 242 Ga. 109 , 249 S.E.2d 596 , 1978 Ga. LEXIS 1119 (1978); Gorlin v. First Nat'l Bank, 150 Ga. App. 637 , 258 S.E.2d 290 , 1979 Ga. App. LEXIS 2233 (1979); Shier v. Price, 152 Ga. App. 593 , 263 S.E.2d 466 , 1979 Ga. App. LEXIS 3054 (1979); Williams v. First Bank & Trust Co., 154 Ga. App. 879 , 269 S.E.2d 923 , 1980 Ga. App. LEXIS 2428 (1980).

When there is actual compliance as to all matters of substance, mere technicalities of form or variations in mode of expression should not be given stature of noncompliance. GECC v. Brooks, 242 Ga. 109 , 249 S.E.2d 596 , 1978 Ga. LEXIS 1119 (1978); Gorlin v. First Nat'l Bank, 150 Ga. App. 637 , 258 S.E.2d 290 , 1979 Ga. App. LEXIS 2233 (1979).

Substantial compliance with the notice provisions of O.C.G.A. § 13-1-11 is sufficient to fulfill the notice requirement. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211, 1981 Bankr. LEXIS 4873 (Bankr. N.D. Ga. 1981).

A literal compliance with the language of paragraph (a)(3) of O.C.G.A. § 13-1-11 is not required; only a substantial compliance is demanded. Carlos v. Murphy Whse. Co., 166 Ga. App. 406 , 304 S.E.2d 439 , 1983 Ga. App. LEXIS 2189 (1983); Palace Indus., Inc. v. Craig, 177 Ga. App. 338 , 339 S.E.2d 313 , 1985 Ga. App. LEXIS 2586 (1985); Upshaw v. Southern Whsle. Flooring Co., 197 Ga. App. 511 , 398 S.E.2d 749 , 1990 Ga. App. LEXIS 1361 (1990).

Failure to meet exact requirements of law will result in disallowance of attorney fees. Farnan v. National Bank, 142 Ga. App. 777 , 236 S.E.2d 923 , 1977 Ga. App. LEXIS 2139 (1977).

Failure to comply exactly with notice provisions of law requires disallowance of attorney’s fees. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788, 1978 U.S. Dist. LEXIS 7207 (S.D. Ga. 1978), aff'd, 620 F.2d 508, 1980 U.S. App. LEXIS 16023 (5th Cir. 1980).

Notice of intent and further demand for attorney’s fees in petition substantially complied with section. —

Where debtor is given notice of intention to collect attorney, and further demand for attorney fees is incorporated in petition, notice substantially meets requirements of law. GECC v. Brooks, 242 Ga. 109 , 249 S.E.2d 596 , 1978 Ga. LEXIS 1119 (1978).

Construction of phraseology. —

Although phraseology of pleading may have given rise to construction that no attorney fees would be sought if payment of note was delayed for at least ten days, such an interpretation was patently absurd, and was clearly due to a typographical error which could not reasonably have misled anyone; consequently, the notice constituted a sufficient compliance with the requirements of paragraph (a)(3) of O.C.G.A. § 13-1-11 . Turner Adv. Co. v. Prakas, 164 Ga. App. 788 , 298 S.E.2d 553 , 1982 Ga. App. LEXIS 2943 (1982).

Notice requiring payment within ten days of date of notice materially varies from requirements. —

Notice that in order to avoid attorney fees, principal and interest must be paid within ten days from date of letter rather than within ten days from date of receipt thereof, is a material variance from statutory requirements and does not constitute substantial compliance with statutory provisions. Gorlin v. First Nat'l Bank, 150 Ga. App. 637 , 258 S.E.2d 290 , 1979 Ga. App. LEXIS 2233 (1979).

Notice stating only intent to file suit and demand attorney’s fees insufficient. —

When debtor is not advised that the debtor may avoid attorney fees by paying principal and interest within ten days of receipt of notice, and is merely advised of creditor’s intention to file suit and demand attorney fees, notice is insufficient. GECC v. Brooks, 242 Ga. 109 , 249 S.E.2d 596 , 1978 Ga. LEXIS 1119 (1978).

Summons with copy of note attached not notice under section. —

When plaintiff in suit on note serves maker with summons which has copy of note providing for attorney fees attached, such summons does not constitute notice under the statutes and fees sued for are not part of principal amount in ascertaining jurisdictional amount for justice court. Godfree & Dellinger v. Brooks, 126 Ga. 627 , 55 S.E. 938 , 1906 Ga. LEXIS 489 (1906).

Landlord’s complaint against tenants. —

When recovery of attorney fees was provided for in a lease, but nothing in the landlord’s complaint warned the tenants that the tenants had 10 days from receipt of notice to pay the sum owed and avoid attorney fees, a directed verdict for the tenants on the issue of attorney’s fees was mandated. Derbyshire v. United Bldrs. Supplies, Inc., 194 Ga. App. 840 , 392 S.E.2d 37 , 1990 Ga. App. LEXIS 377 (1990).

Landlord’s correspondence and pleadings did not substantially comply with the requirement of O.C.G.A. § 13-1-11(a)(3) that it give the tenant it was suing notice the tenant could pay the principal and interest claimed within 10 days from the notice without being liable for attorney fees; thus, the landlord was not entitled to attorney fees from the tenant. Logistics Int'l, Inc. v. RACO/Melaver, LLC, 257 Ga. App. 879 , 572 S.E.2d 388 , 2002 Ga. App. LEXIS 1327 (2002).

Sufficient notice given. —

Trial court did not err in determining that a creditor gave a debtor and guarantors sufficient notice of the creditor’s intention to seek the attorney fees provided by a promissory note and security deed if the creditor used an attorney to collect the indebtedness because the notice sent to the debtor and guarantors referenced O.C.G.A. § 13-11-1 , provided notice that the creditor intended to conduct a foreclosure sale, and stated that proceeds of the foreclosure sale would be applied to the creditor’s attorney fees as provided in the note and security deed; the notice also explicitly stated that the debtor had ten days from the debtor’s receipt of the notice within which to pay principal and interest without incurring any liability for attorney fees. Cmty. Marketplace Props., LLC v. Suntrust Bank, 303 Ga. App. 403 , 693 S.E.2d 602 , 2010 Ga. App. LEXIS 367 (2010).

Trial court did not err in granting a corporation’s motion for summary judgment on the corporation’s claim for attorney fees under O.C.G.A. § 13-1-11 on the damages a jury awarded the corporation in the corporation’s suit against a textile company for anticipatory breach of contract because there was no genuine issue of material fact as to whether the demand letter the corporation issued to the textile company was defective under § 13-1-11 since the demand letter substantially complied with § 13-1-11 by setting forth the face value of the unpaid debt obligation, $2 million, even if the corporation ultimately could recover somewhat less than that amount after a jury calculated the present value; the textile company’s full payment obligations have matured, and upon the textile company’s anticipatory breach of the parties’ agreement, the corporation was entitled to issue a demand for the face value of the total remaining unpaid debt, $2 million, prior to the entry of judgment on the indebtedness. Textile Rubber & Chem. Co. v. Thermo-Flex Techs., Inc., 308 Ga. App. 89 , 706 S.E.2d 728 , 2011 Ga. App. LEXIS 125 (2011).

Illustration of notice adequately meeting requirements of paragraph (a)(3). —

See Gresham v. Rogers, 147 Ga. App. 189 , 248 S.E.2d 225 , 1978 Ga. App. LEXIS 2844 (1978); Albany Prod. Credit Ass'n v. Sizemore, 175 Ga. App. 826 , 334 S.E.2d 872 , 1985 Ga. App. LEXIS 2399 (1985); Clark v. GMAC, 185 Ga. App. 130 , 363 S.E.2d 813 , 1987 Ga. App. LEXIS 2457 (1987); Dalcor Mgt., Inc. v. Sewer Rooter, Inc., 205 Ga. App. 681 , 423 S.E.2d 419 , 1992 Ga. App. LEXIS 1292 (1992); S & A Indus. v. Bank Atlanta, 247 Ga. App. 377 , 543 S.E.2d 743 , 2000 Ga. App. LEXIS 1439 (2000), cert. denied, No. S01C0517, 2001 Ga. LEXIS 494 (Ga. June 5, 2001), cert. denied, No. S01C0512, 2001 Ga. LEXIS 620 (Ga. July 16, 2001).

Illustration of notice inadequate under section. —

See Adair Realty & Loan Co. v. Williams Bros. Lumber Co., 112 Ga. App. 16 , 143 S.E.2d 577 , 1965 Ga. App. LEXIS 587 (1965); Turk's Memory Chapel, Inc. v. Toccoa Casket Co., 134 Ga. App. 71 , 213 S.E.2d 174 , 1975 Ga. App. LEXIS 1909 (1975); Sockwell v. Pettus, 139 Ga. App. 311 , 228 S.E.2d 343 , 1976 Ga. App. LEXIS 1778 (1976); Professional Cleaners v. Phenix Supply Co., 201 Ga. App. 634 , 411 S.E.2d 781 , 1991 Ga. App. LEXIS 1572 (1991).

7.Pleadings

Stipulation in note for attorney’s fees must be alleged. —

Where from the petition in a suit on a note it does not appear that it contained any provision relative to the collection of attorney’s fees, attorney’s fees cannot be recovered, although plaintiff served defendant with notice of plaintiff’s intention to bring suit upon note. Browder-Manget Co. v. West End Bank, 143 Ga. 736 , 85 S.E. 881 , 1915 Ga. LEXIS 600 (1915).

One seeking recovery of attorney fees must allege and prove proper notice. —

By terms of section, attorney’s fees, for which provision is made in promissory note, are not collectible unless it be alleged and proved that after maturity, holder of note notified person sought to be bound thereon that the person had ten days from receipt of such notice to pay principal and interest without attorney’s fees. Walton v. Johnson, 213 Ga. 108 , 97 S.E.2d 310 , 1957 Ga. LEXIS 315 (1957).

Attorney’s fee lien filed after commencement of bankruptcy proceedings does not give debtor opportunity to pay, and enforcement would frustrate and be inconsistent with bankruptcy reorganization proceedings. Security Nat'l Bank v. Cotton, 513 F.2d 546, 1975 U.S. App. LEXIS 14575 (5th Cir. 1975).

One seeking recovery of attorney’s fees must allege giving of notice after maturity. —

Where suit upon contract seeking to recover attorney’s fees does not affirmatively allege that notice of attorney’s fees was given after maturity, recovery of attorney’s fees is authorized. Dailey v. First Nat'l Bank, 114 Ga. App. 248 , 150 S.E.2d 847 , 1966 Ga. App. LEXIS 698 (1966).

Giving of notice must be alleged, and if denied, proved at trial. —

Before attorney’s fees can be recovered on note it must be alleged in pleadings that statutory notice has been given; and such allegation, if denied, must be proved on trial. Heard v. Tappan & Merritt, 116 Ga. 930 , 43 S.E. 375 , 1903 Ga. LEXIS 118 (1903); Pritchard v. McCrary, 122 Ga. 606 , 50 S.E. 366 , 1905 Ga. LEXIS 279 (1905).

Before attorney’s fees can be recovered on promissory note, it must be alleged in petition that statutory notice to claim attorney’s fees has been given to maker, and such allegation, if denied, must be proved at trial. Jones v. Lawman, 56 Ga. App. 764 , 194 S.E. 416 , 1937 Ga. App. LEXIS 229 (1937).

Suit not treated as for attorney fees where petition silent as to notice of intent to sue, though the petition prays for recovery of such fees. McDonald v. Ware & Harper, 17 Ga. App. 450 , 87 S.E. 679 , 1916 Ga. App. LEXIS 671 (1916).

It is unnecessary to aver how notice served. —

Where it is averred that notice required by law in order to bind defendant with liability for attorney’s fees has been served, it is not necessary that it should appear how it was served. Proof must disclose this. Cook v. Hightower & Co., 13 Ga. App. 309 , 79 S.E. 165 , 1913 Ga. App. LEXIS 137 (1913).

It is not necessary that copy of notice be attached to petition. Youmans v. Moore, 13 Ga. App. 119 , 78 S.E. 862 , 1913 Ga. App. LEXIS 62 (1913); Reeves v. Gower, 14 Ga. App. 293 , 80 S.E. 699 , 1914 Ga. App. LEXIS 221 (1914); McNatt v. Citizens & S. Bank, 20 Ga. App. 755 , 93 S.E. 271 , 1917 Ga. App. LEXIS 1075 (1917).

Plea denying liability for attorney’s fees is good though not under oath, since contract is to that extent conditional. O'Kelly v. Welch, 18 Ga. App. 157 , 89 S.E. 76 , 1916 Ga. App. LEXIS 191 (1916).

Unsworn answer by defendant, denying that statutory notice was given, is sufficient as to attorney’s fees claimed. Walker v. Wood, 14 Ga. App. 29 , 79 S.E. 905 , 1913 Ga. App. LEXIS 397 (1913).

If answer admits receipt of notice, plaintiff need not introduce proof of notice. —

When defendant’s answer admits receipt of notice required by law in normal course of mail, it is not necessary that plaintiff introduce evidence on trial to prove that alleged notice was in fact given. Newby v. Armour Agrl. Chem. Co., 119 Ga. App. 650 , 168 S.E.2d 652 , 1969 Ga. App. LEXIS 1200 (1969).

Failure to deny notice equivalent to admission of notice. —

Defendant’s statement in plea that defendant had no recollection of notice alleged by plaintiff to have been given is an admission of notice. Branch v. Johnson, 9 Ga. App. 699 , 71 S.E. 1123 , 1911 Ga. App. LEXIS 299 (1911).

When petition alleges giving of required notice, defendant’s failure to answer is implied admission. —

When petition recites giving of statutory notice for collection of attorney’s fees, and case is in default, judge may, without further proof than admission implied by failure of defendant to answer, direct a verdict in favor of plaintiff for amount sued for. Ivey v. Payne, 8 Ga. App. 760 , 70 S.E. 140 , 1911 Ga. App. LEXIS 136 (1911); Valdosta, M. & W.R.R. v. Citizens Bank, 14 Ga. App. 329 , 80 S.E. 913 , 1914 Ga. App. LEXIS 250 (1914); Sirmans v. Flosom & Tillman Hdwe. Co., 18 Ga. App. 586 , 89 S.E. 1103 , 1916 Ga. App. LEXIS 1125 (1916); Anderson v. King, 19 Ga. App. 471 , 91 S.E. 788 , 1917 Ga. App. LEXIS 166 (1917).

One seeking recovery of attorney’s fees bears burden of showing valid notice. —

Burden is on plaintiff to show valid notice to defendant that attorney’s fees as provided by note would be claimed. Walton v. Johnson, 213 Ga. 108 , 97 S.E.2d 310 , 1957 Ga. LEXIS 315 (1957).

When a creditor was not entitled to a default judgment in the creditor’s lawsuit alleging that the debtor’s credit card debt was non-dischargeable under 11 U.S.C. § 523(a) (2)(A) because the complaint did not contain sufficient factual allegations showing fraud, false pretenses, or false representations by the debtor as to the credit card debt, the creditor was also not entitled to default judgment on the creditor’s claim for attorneys’ fees because the complaint did not show that the creditor gave 10 days written notice of the creditor’s intent to enforce the credit card’s attorneys’ fees provision as required by O.C.G.A. § 13-1-11(a)(3). Am. Express Centurion Bank v. McGloster (In re McGloster), No. 12-73933-WLH, No. 12-05664, 2013 Bankr. LEXIS 2237 (Bankr. N.D. Ga. Apr. 30, 2013).

8.Evidentiary Issues

Burden is on plaintiff to prove notice was sent in compliance with paragraph (a)(3). Murdock Acceptance Corp. v. Wagnon, 587 F.2d 764, 1979 U.S. App. LEXIS 17643 (5th Cir. 1979).

Testimony that notices were sent and acknowledged, without showing as to contents, inadmissible. —

Mere general testimony of attorney of plaintiff that the attorney made out and mailed notices to all parties, and several of the parties acknowledged receiving the notices, without any showing as to contents of notices, or how the notices were directed or that the notices were stamped, was inadmissible. Shaw v. Probasco, 139 Ga. 481 , 77 S.E. 577 , 1913 Ga. LEXIS 477 (1913).

Admissibility of parol evidence in connection with notice. —

It is error to allow parol evidence as to contents of written notice of claim for attorney’s fees, or to refuse, upon proper motion, to exclude such parol evidence, where defendant has not been served with notice to produce, nor any other attempt been made to show loss or destruction of original notice. Sheffield v. Bainbridge Oil Co., 3 Ga. App. 200 , 59 S.E. 725 , 1907 Ga. App. LEXIS 594 (1907); Lightfoot v. Head & Cain, 27 Ga. App. 148 , 107 S.E. 609 , 1921 Ga. App. LEXIS 741 (1921).

Role of jury and judge. —

Verdict of jury or finding of fact by judge sitting as jury is necessary before plaintiff is entitled to judgment for attorney’s fees. Valdosta, M. & W.R.R. v. Citizens Bank, 14 Ga. App. 329 , 80 S.E. 913 , 1914 Ga. App. LEXIS 250 (1914).

When no jury has been demanded judgment should be couched in such language as to indicate that judge, sitting as jury, has found that written notice of suit has been given as required by law. Valdosta, M. & W.R.R. v. Citizens Bank, 14 Ga. App. 329 , 80 S.E. 913 , 1914 Ga. App. LEXIS 250 (1914); Elders v. Kennedy, 17 Ga. App. 463 , 87 S.E. 701 , 1916 Ga. App. LEXIS 690 (1916).

Default judgment for attorney’s fees must rest upon proof or implied admission of notice. —

Where suit is in default, it is error to enter judgment for attorney’s fees unless judge sitting as jury relies either upon testimony introduced on trial, or by admission implied by failure of defendant to answer, for proof of service of notice. Turner v. Bank of Maysville, 13 Ga. App. 547 , 79 S.E. 180 , 1913 Ga. App. LEXIS 251 (1913).

Admission, by default, of plaintiff’s averment of proper notice, is sufficient proof of notice. State Mut. Life Ins. Co. v. Jacobs, 36 Ga. App. 731 , 137 S.E. 905 , 1927 Ga. App. LEXIS 269 (1927).

Calling upon defendant to produce original, alleged notice at trial is proper proof. —

Where holder set forth copy of notice alleged to have been mailed to defendant, and called upon defendant to produce original notice, and it was admitted by defendant’s counsel in open court that notice was received, objection to this proof of service was without merit. Hudson v. James, 150 Ga. 337 , 103 S.E. 816 , 1920 Ga. LEXIS 170 (1920).

Production of notice for attorney’s fees in response to notice to produce is a circumstance which, when taken in connection with other testimony, is sufficient to authorize inference that defendant received statutory notice for attorney’s fees required by law. Edenfield v. Youmans, 38 Ga. App. 584 , 144 S.E. 671 , 1928 Ga. App. LEXIS 346 (1928).

Questions of fact remained to be determined. —

Grant of summary judgment to the creditors was reversed because questions of fact existed as to whether one creditor’s failure to confirm the foreclosure sale barred the claims asserted by it and the other creditor as well as a question of fact existed as to whether all of the debts at issue, including the 2004 loan, were owed to a single creditor and were given for the same purpose. Bryant v. Optima Int'l, 339 Ga. App. 696 , 792 S.E.2d 489 , 2016 Ga. App. LEXIS 642 (2016).

ADVISORY OPINIONS OF THE STATE BAR

Fee sharing with lay organizations. — Fee sharing between a lawyer and a lay organization is not prohibited where the lay organization is the client. Adv. Op. No. 88-2 (Nov. 10, 1988).

General Consideration

Section not unconstitutional for reason that it violates due process clauses of state and federal Constitutions. Strachan Shipping Co. v. Mayor of Savannah, 168 Ga. 309 , 147 S.E. 555 , 1929 Ga. LEXIS 127 (1929) (see O.C.G.A. § 13-1-13 ).

Statute has been strictly construed by Georgia courts as against one making payments. Atlanta Milling Co. v. Norris Grain Co., 271 F.2d 453, 1959 U.S. App. LEXIS 3163 (5th Cir. 1959) (see O.C.G.A. § 13-1-13 ).

O.C.G.A. § 13-1-13 did not apply to an equitable action by a bank to reform a note which had been mistakenly marked “paid in full.” Decatur Fed. Savs. & Loan v. Gibson, 268 Ga. 362 , 489 S.E.2d 820 , 1997 Ga. LEXIS 513 (1997).

Voluntary payment doctrine not a defense to Natural Gas Act consumer claim. —

Trial court erred in dismissing natural gas customers’ class action based on the voluntary payment doctrine. O.C.G.A. § 46-4-160.5 , which specifically authorized a private right of action for damages against a provider for intentionally and deceptively over charging the customers, prevailed over O.C.G.A. § 13-1-13 , the general statute setting forth the voluntary payment doctrine. Southstar Energy Servs., LLC v. Ellison, 286 Ga. 709 , 691 S.E.2d 203 , 2010 Ga. LEXIS 223 (2010).

General presumption that money paid is due and payment voluntary. —

General presumption is that when one pays money to another, money is due and payee is entitled thereto, and the payment is voluntarily made by payer, and in action to recover the money back, burden is on payer to show that payment was not due and that money was not paid by payer voluntarily; this rule applies to payment of insurance premiums by insured to insurer. New York Life Ins. Co. v. Williamson, 53 Ga. App. 28 , 184 S.E. 755 , 1936 Ga. App. LEXIS 4 (1936).

Burden is on plaintiff to establish that payments were not voluntary. City of Norcross v. Taylor, 153 Ga. App. 836 , 267 S.E.2d 255 , 1980 Ga. App. LEXIS 2002, 1980 Ga. App. LEXIS 3239 (1980).

While money voluntarily paid may not ordinarily be recovered, this rule is not without exception. Greene v. McIntyre, 119 Ga. App. 296 , 167 S.E.2d 203 , 1969 Ga. App. LEXIS 1078 (1969).

Burden on plaintiff to establish exception to voluntary payment rule. —

Georgia law requires a plaintiff in an overpayment case to prove that the plaintiff was unaware of the true facts at the time the overpayment was made, or fit within an exception to the “voluntary payment” rule. Kleiner v. First Nat'l Bank, 581 F. Supp. 955, 1984 U.S. Dist. LEXIS 19065 (N.D. Ga. 1984).

Construction with equitable principles. —

Although an action for money had and received is governed by O.C.G.A. § 13-1-13 , Georgia courts have construed that section and its predecessors, and interpreted the action itself, in conjunction with the equitable principles set forth in the Code, including O.C.G.A. § 23-2-32 and its predecessors. Gulf Life Ins. Co. v. Folsom, 256 Ga. 400 , 349 S.E.2d 368 , 1986 Ga. LEXIS 865 (1986).

Equities to be considered by the jury in the case of a claim for money had and received are: (1) the degree of negligence on the plaintiff’s part in erroneously paying over the money; (2) the level of good faith with which the defendant acted in receiving and retaining the money; and (3) prejudice, i.e., whether the defendant’s position has so changed that it would be unfair to require the defendant to pay the money back. Gulf Life Ins. Co. v. Folsom, 907 F.2d 1115, 1990 U.S. App. LEXIS 12943 (11th Cir. 1990).

In an action for money had and received, where the plaintiff was negligent, the plaintiff is entitled to get the plaintiff’s money back—unless the jury decides that he doesn’t deserve it back or that the defendant deserves to keep it. Gulf Life Ins. Co. v. Folsom, 907 F.2d 1115, 1990 U.S. App. LEXIS 12943 (11th Cir. 1990).

Application of O.C.G.A. § 23-2-22 . —

O.C.G.A. § 23-2-22 was inapplicable to a company’s counterclaim to recover payments under a purchase agreement as § 23-2-22 offered relief following a mistake of law; the company made the payments in ignorance of the law and O.C.G.A. § 13-1-13 prohibited recovery of the payments voluntarily made in ignorance of the law. Wallis v. B & A Construction Co., 273 Ga. App. 68 , 614 S.E.2d 193 , 2005 Ga. App. LEXIS 415 (2005).

Effect of detrimental reliance by recipient. —

The court did not err in ruling that a recipient of Medicaid reimbursement funds had so changed its position in reliance on its hospital-based classification that it would be unjust to require it to refund the monies in question. Department of Medical Assistance v. Presbyterian Home, Inc., 200 Ga. App. 885 , 409 S.E.2d 881 , 1991 Ga. App. LEXIS 1161 (1991), cert. denied, No. S91C1697, 1992 Ga. LEXIS 357 (Ga. Apr. 24, 1992).

“Where all the facts are known.” —

O.C.G.A. § 13-1-13 by its terms applies “where all the facts are known.” This has been construed to include constructive, as well as actual knowledge, under such equitable principles as those in O.C.G.A. § 23-2-29 . Gulf Life Ins. Co. v. Folsom, 256 Ga. 400 , 349 S.E.2d 368 , 1986 Ga. LEXIS 865 (1986).

Client may recover from attorney where proprieties of relationship demand return of portion of fee paid. Greene v. McIntyre, 119 Ga. App. 296 , 167 S.E.2d 203 , 1969 Ga. App. LEXIS 1078 (1969).

Where purpose for payment fails of accomplishment, money paid cannot be retained. —

Where purpose for which plaintiff parted with the plaintiff’s money failed of accomplishment, defendants cannot in good conscience retain money, and plaintiff is entitled to have the money returned to the plaintiff. Broome v. Cavanaugh, 102 Ga. App. 563 , 116 S.E.2d 881 , 1960 Ga. App. LEXIS 680 (1960).

Accepting employment in confidential relationship without disclosing lack of qualification warrants recovery of money paid. —

One who accepts employment in confidential relationship of attorney and client and fee for such services to be performed, without disclosing lack of qualification and authorization under law to perform services desired, has practiced fraud upon the principal which warrants recovery by principal of fee paid, where services which may have been rendered do not appear to have been of any material benefit to principal. Lowe v. Presley, 86 Ga. App. 328 , 71 S.E.2d 730 , 1952 Ga. App. LEXIS 947 (1952).

Payments made without duress or fraud, with knowledge of all facts, are voluntary and unrecoverable. —

Payments not made under duress, and made with knowledge of all facts, without fraud or deception on part of person to whom payment is made, though in ignorance of legal rights of party paying, are voluntary, and cannot be recovered. Commerce Fin. Co. v. Perry, 67 Ga. App. 491 , 21 S.E.2d 123 , 1942 Ga. App. LEXIS 456 (1942).

Trial court erred in not granting a mortgage company’s motion for summary judgment on the company’s defense under the “voluntary payment rule” codified in O.C.G.A. § 13-1-13 because there was no evidence of artifice, deception, or fraud on the part of the company as the company informed the homeowners more than six months prior to the closing on the sale of the home that the disputed fees were being charged; by their own admission, the homeowners were aware of the fees. Regions Mortg., Inc. v. Jackson, 294 Ga. App. 525 , 669 S.E.2d 411 , 2008 Ga. App. LEXIS 1152 (2008).

Voluntary payments of claims cannot be recovered although contract itself is void and unenforceable. Couch v. Blackwell & Assocs., 150 Ga. App. 739 , 258 S.E.2d 552 , 1979 Ga. App. LEXIS 2362 (1979).

Doctrine did not bar payment made before contract breached. —

The voluntary payment doctrine of O.C.G.A. § 13-1-13 did not preclude a buyer of parts from recovering a partial payment made to the seller. After the buyer made an interim payment the buyer was not required to make, the seller breached the contract by not allowing the buyer to inspect a shipment of parts and by abandoning performance of the contract. Energy & Process Corp. v. Jim Dally & Assocs., 291 Ga. App. 772 , 662 S.E.2d 835 , 2008 Ga. App. LEXIS 640 (2008).

Recovery of interest payments on null and void contract, unlike payments toward principal, are recoverable. —

Recovery of payments made by borrower towards repayment of principal under null and void loan contract is barred if payments were made voluntarily, but repayment of sums constituting interest on such an invalid loan are recoverable by borrower, since lender’s claim to principal stands on different equitable footing than lender’s claim to interest on principal sum of loans. Sanders v. Liberty Loan Corp., 153 Ga. App. 859 , 267 S.E.2d 286 , 1980 Ga. App. LEXIS 2010, rev'd, 246 Ga. 292 , 271 S.E.2d 218 , 1980 Ga. LEXIS 1086 (1980), overruled, Financeamerica Corp. v. Drake, 154 Ga. App. 811 , 270 S.E.2d 449 , 1980 Ga. App. LEXIS 2402 (1980).

Payment of illegal demand not recoverable unless within exceptions provided by law. —

Where party pays illegal demand with full knowledge of all facts which render such demand illegal, without immediate and urgent necessity therefor, or unless to release the party’s person or property from detention, or to prevent an immediate seizure of the party’s person or property, such payment must be deemed voluntary, and cannot be recovered back. McCarty v. Mobley, 14 Ga. App. 225 , 80 S.E. 523 , 1914 Ga. App. LEXIS 185 (1914); Dennison Mfg. Co. v. Wright, 156 Ga. 789 , 120 S.E. 120 , 1923 Ga. LEXIS 333 (1923).

Section inapplicable where payment induced by misplaced confidence, artifice, deception or fraud of party paid. —

While money voluntarily paid may not ordinarily be recovered back, nevertheless this rule has no application where payment is induced by misplaced confidence, artifice, deception, or fraudulent practice on part of person to whom money is paid. Lowe v. Presley, 86 Ga. App. 328 , 71 S.E.2d 730 , 1952 Ga. App. LEXIS 947 (1952).

In an action by borrowers claiming that the lender’s charging of an illegal notary fee breached the parties’ loan agreement, the district court erred in concluding that, regardless of whether a breach occurred, O.C.G.A. § 13-1-13 barred recovery because Georgia’s Supreme Court, in response to a certified question, concluded that the borrowers had alleged sufficient artifice, deception, or fraudulent practice to trigger an exception to § 13-1-13 . Anthony v. Am. Gen. Fin. Servs., 626 F.3d 1318, 2010 U.S. App. LEXIS 24446 (11th Cir. 2010).

Section applicable to insurance premiums voluntarily paid by one entitled to waiver thereof. —

Premiums voluntarily paid by insured, where the insured is entitled to waiver thereof under provisions of policies of insurance sued on, cannot be recovered back by insured except where it is alleged and proved by the insured that the payments were paid under a mistake of facts or because of fraud or artifice practiced upon insured. New York Life Ins. Co. v. Williamson, 53 Ga. App. 28 , 184 S.E. 755 , 1936 Ga. App. LEXIS 4 (1936).

One cannot avoid legal consequences of one’s acts by protesting, at time one does the acts, that one does not intend to subject oneself to such consequences. Lewis v. Colquitt County, 71 Ga. App. 304 , 30 S.E.2d 801 , 1944 Ga. App. LEXIS 346 (1944).

Section inapplicable to three-cornered transaction resulting in tort claim. —

O.C.G.A. § 13-1-13 does not apply to a three-cornered transaction culminating in a tort claim for damages. Read v. Benedict, 200 Ga. App. 4 , 406 S.E.2d 488 , 1991 Ga. App. LEXIS 757 (1991).

Section no bar to recovery of premiums not made to satisfy claim. —

In a suit on a contract terminating a business relationship and requiring the defendant to select one of two options regarding an insurance policy, the plaintiff’s recovery of insurance premiums the plaintiff paid was not barred by the voluntary payment doctrine of O.C.G.A. § 13-1-13 ; the plaintiff made premium payments not to satisfy a claim but to keep the policy in effect, and allowing the premium to go unpaid would have defeated the purpose of the parties’ agreement. Hibbard v. McMillan, 284 Ga. App. 753 , 645 S.E.2d 356 , 2007 Ga. App. LEXIS 400 (2007).

Voluntary payment doctrine did not apply to recovery of usury. —

In a class action suit alleging that a bank’s charges for ATM overdrafts were usurious, the bank’s claim that each class member’s ability to recover on claims for conversion and money had and received would depend on an individualized inquiry under the voluntary payment doctrine was rejected because the voluntary payment doctrine did not apply to the recovery of usury. SunTrust Bank v. Bickerstaff, 349 Ga. App. 794 , 824 S.E.2d 717 (2019).

Proof required of party seeking recovery. —

Party seeking recovery must prove that the payment was not voluntarily made because certain material facts were not known at the time of payment or a valid reason existed for failure to determine the truth. Rod's Auto Fin., Inc. v. Finance Co., 211 Ga. App. 63 , 438 S.E.2d 175 , 1993 Ga. App. LEXIS 1406 (1993).

Settlement amount. —

Trial court properly granted summary judgment to a general contractor because the general contractor had no legal obligation under the payment bond itself to reimburse an insurance company for the full amount of the settlement with it, plus attorney’s fees and costs. Progressive Elec. Servs. v. Task Force Construction, Inc., 327 Ga. App. 608 , 760 S.E.2d 621 , 2014 Ga. App. LEXIS 389 (2014).

Voluntary Payments

Payment in response to threat to levy execution if not paid promptly not involuntary. —

Payment of judgment alleged to be void, where facts are all known by defendant, and there is no misplaced confidence, and no artifice, deception, or fraudulent practice used by other party, is voluntary payment, and cannot be recovered, unless made under urgent and immediate necessity therefor, or to release person or property, although such payment is made under protest. Mere threat to levy execution if not paid promptly or at once does not render payment involuntary. West v. Brown, 165 Ga. 187 , 140 S.E. 500 , 1927 Ga. LEXIS 345 (1927) (citing Williams v. Stewart, 1902 Ga. LEXIS 630, 115 Ga. 864 , 42 S.E. 256 (1902)).

Mere apprehension or threats of civil proceeding to enforce claim do not render claim involuntary. —

Mere apprehension or threats of civil proceeding to enforce claim, unaccompanied by any act of hardship or of oppression, does not render payment in response thereto involuntary. Strachan Shipping Co. v. Mayor of Savannah, 168 Ga. 309 , 147 S.E. 555 , 1929 Ga. LEXIS 127 (1929).

Threatened levy upon land not seizure as would render payment involuntary. —

Threatened levy upon land is neither an immediate seizure of one’s goods or arrest of one’s person such as would make payment in lieu of levy less than voluntary. Dunton v. Norton, 42 Ga. App. 310 , 155 S.E. 775 , 1930 Ga. App. LEXIS 378 (1930).

Voluntary expenditures made by intervenor in partition suit not recoverable. —

Expenditures voluntarily made by intervenor in partition suit while living with his wife and mother, (plaintiff and defendant) and in providing home for himself, his wife, and his mother, not recoverable by him. Mills v. Williams, 208 Ga. 425 , 67 S.E.2d 212 , 1951 Ga. LEXIS 385 (1951).

Application of doctrine to mistaken duplicate payment. —

The voluntary payment doctrine did not bar a city’s unjust enrichment and conversion claims filed against a construction contractor as the contractor failed to show that: (1) a genuine issue of material fact remained over whether the city was negligent in ascertaining the true facts; and (2) any prejudice would result if the mistaken duplicate payment the city made to the contractor were returned to the city. D & H Constr. Co. v. City of Woodstock, 284 Ga. App. 314 , 643 S.E.2d 826 , 2007 Ga. App. LEXIS 293 (2007).

Overpayment in posting of bail bonds. —

Family’s suit to recover an overpayment the family made to two bail bondspersons to post bail bonds was not barred by O.C.G.A. § 13-1-13 even though the payments to the bondspersons were voluntarily made as the family paid the money to release a family member from detention. Borison v. Christian, 257 Ga. App. 257 , 570 S.E.2d 696 , 2002 Ga. App. LEXIS 1137 (2002), cert. denied, No. S03C0102, 2002 Ga. LEXIS 1095 (Ga. Nov. 25, 2002).

Recovery of overpayments from energy company. —

Trial court erred by dismissing a class action complaint under O.C.G.A. § 9-11-12(b)(6) for failure to state a cause of action in a suit brought by customers against an energy company seeking recovery of overpayments as the voluntary payment doctrine did not apply to bar the action. Ellison v. Southstar Energy Servs., LLC, 298 Ga. App. 170 , 679 S.E.2d 750 , 2009 Ga. App. LEXIS 631 (2009), aff'd, 286 Ga. 709 , 691 S.E.2d 203 , 2010 Ga. LEXIS 223 (2010).

Money paid under apprehension or threat of criminal prosecution where no immediate danger not involuntary. —

Money paid under apprehension or threat of criminal prosecution, when no warrant has been issued or proceeding begun, and there is no urgent and immediate danger, does not constitute duress so as to make payment compulsory. Strachan Shipping Co. v. Mayor of Savannah, 168 Ga. 309 , 147 S.E. 555 , 1929 Ga. LEXIS 127 (1929).

Payments resulting from threats by one clothed with governmental authority to execute threats, generally recoverable. —

To above rule there is this exception: Where there are demands and threats by persons clothed with governmental authority to carry the threats into execution by arrest and prosecution, case stands on a different footing from demands and threats of private individuals, and money paid as a result may generally be recovered. Strachan Shipping Co. v. Mayor of Savannah, 168 Ga. 309 , 147 S.E. 555 , 1929 Ga. LEXIS 127 (1929).

Partial insurance settlement. —

Acceptance of a partial settlement of an insurance claim in exchange for a general release because of ignorance of rights which would have allowed full payment was a voluntary action under O.C.G.A. § 13-1-13 . Hawkins v. Travelers Ins. Co., 162 Ga. App. 231 , 290 S.E.2d 348 , 1982 Ga. App. LEXIS 2124 (1982).

Settlement for amount in excess of liability limit. —

Insurance company which settled a lawsuit for $600,000, prior to a declaratory judgment holding that the limit of liability was $500,000, could not recover the $100,000 overpayment, which constituted a voluntary payment. Insurance Co. of N. Am. v. Kyla, Inc., 193 Ga. App. 555 , 388 S.E.2d 530 , 1989 Ga. App. LEXIS 1550 (1989).

Contribution by employer to tort settlement voluntary. —

Where a “statutory employer,” within the meaning of the workers’ compensation law, enjoyed tort immunity at the time it contributed to a tort settlement, its payment constituted a voluntary payment, and the employer was not entitled to credit for funds it contributed to the settlement. Travelers Ins. Co. v. McNabb, 201 Ga. App. 297 , 410 S.E.2d 788 , 1991 Ga. App. LEXIS 1322 (1991), cert. denied, No. S92C0084, 1991 Ga. LEXIS 895 (Ga. Nov. 1, 1991), cert. denied, No. S92C0112, 1991 Ga. LEXIS 900 (Ga. Nov. 1, 1991).

Retirement benefits. —

Summary judgment for a retirement system was reversed as there were fact issues as to voluntary payment under O.C.G.A. § 13-1-13 , and equitable estoppel under O.C.G.A. § 23-2-32 , as a son claimed that his mother told him that her benefits would continue to be paid after her death; details of how the retirement system discovered the mother’s death were needed to resolve the possibility that the son retained and spent the money in good faith. Applebury v. Teachers' Ret. Sys., 275 Ga. App. 194 , 620 S.E.2d 452 , 2005 Ga. App. LEXIS 931 (2005).

Recovery of payments by county. —

In an action by a county to recover payments the county made to a company in connection with road improvement projects, the county could not raise the argument that the provisions of O.C.G.A. § 36-10-1 , regarding requirements for county contracts, were not followed when the county paid the amounts and then waited more than two years to file suit to recover the monies paid. Twiggs County v. Oconee Elec. Mbrshp. Corp., 245 Ga. App. 231 , 536 S.E.2d 553 , 2000 Ga. App. LEXIS 815 (2000), cert. denied, No. S00C1961, 2001 Ga. LEXIS 119 (Ga. Feb. 2, 2001).

County was not entitled to recover voluntary payments made to the county tax commissioner in the form of commissions the commissioner received in the commissioner’s capacity as tag fee agent, even though it was later determined that the commissioner was not entitled to receive a portion of tag fees as compensation, as the parties were operating under the mistaken belief that the law permitted the commissioner to be paid the commissions, both parties knew that the commissioner was being paid a commission from the fees collected, and there was no deception or fraud on the commissioner’s part regarding the fact that the commissioner was receiving the commissions. Montgomery County v. Sharpe, 261 Ga. App. 389 , 582 S.E.2d 545 , 2003 Ga. App. LEXIS 640 (2003).

Right to recoup taxes forfeited. —

Superior court did not err in reversing the decision of the Georgia Department of Revenue that a corporate officer was liable for a restaurant’s sales and use taxes pursuant to O.C.G.A. § 48-2-52 because the release of and refund payment to the majority owner of the restaurant operated as a release of the officer; under O.C.G.A. § 13-1-13 , by voluntarily paying the owner a settlement amount with full awareness of any potential joint claim the owner had against the officer, the Department forfeited any right the Department had to recoup from the officer the payment the Department made to the owner. Ga. Dep't of Revenue v. Moore, 317 Ga. App. 31 , 730 S.E.2d 671 , 2012 Ga. App. LEXIS 684 (2012).

Doctrine does not apply to tax indebtedness. —

In an assessment action under O.C.G.A. § 48-2-52 , the Georgia Court of Appeals erred by concluding that because the Georgia Department of Revenue voluntarily refunded a tax payment made by a majority owner of a restaurant, it could not seek payment from a second responsible party as the voluntary payment doctrine applied to contracts, not tax indebtedness; it was necessary to remand the case to see if the second responsible party was a necessary party to the majority owner’s refund action. Ga. Dep't of Revenue v. Moore, 294 Ga. 20 , 751 S.E.2d 57 , 2013 Ga. LEXIS 885 (2013).

Voluntary payment doctrine set forth in O.C.G.A. § 13-1-13 is a concept applicable to contracts, not tax indebtedness. Ga. Dep't of Revenue v. Moore, 294 Ga. 20 , 751 S.E.2d 57 , 2013 Ga. LEXIS 885 (2013).

Payment of late charges. —

The voluntary payment doctrine barred claims for recovery of late fees paid by cable television subscribers under a service agreement with the cable company which stated that a late fee would be charged to a customer’s account if payment was not received by the due date. Telescripps Cable Co. v. Welsh, 247 Ga. App. 282 , 542 S.E.2d 640 , 2000 Ga. App. LEXIS 1392 (2000), cert. denied, No. S01C0560, 2001 Ga. LEXIS 461 (Ga. June 4, 2001).

On facts, payment voluntary. —

J.A. Jones Constr. Co. v. Greenbriar Shopping Ctr., 332 F. Supp. 1336, 1971 U.S. Dist. LEXIS 14645 (N.D. Ga. 1971), aff'd, 461 F.2d 1269, 1972 U.S. App. LEXIS 8461 (5th Cir. 1972); Rod's Auto Fin., Inc. v. Finance Co., 211 Ga. App. 63 , 438 S.E.2d 175 , 1993 Ga. App. LEXIS 1406 (1993); Chemin v. State Farm Mut. Auto. Ins. Co., 226 Ga. App. 702 , 487 S.E.2d 638 , 1997 Ga. App. LEXIS 750 (1997), cert. denied, No. S97C1521, 1997 Ga. LEXIS 953 (Ga. Oct. 31, 1997).

Payment not accepted. —

Evidence showed that plaintiff who was awarded judgment did not accept payment of $43,166 which defendant made in an attempt to satisfy the judgment prior to appeal, and the appellate court held that plaintiff was not entitled to take advantage of defendant by arguing that the check was a voluntary payment under O.C.G.A. § 13-1-13 and did not have to be returned, but that plaintiff was required to return the money to comply with the appellate court’s judgment reversing the trial court’s judgment in plaintiff’s favor. Blanton v. Bank of Am., 263 Ga. App. 284 , 587 S.E.2d 411 , 2003 Ga. App. LEXIS 1178 (2003), cert. denied, No. S04C0220, 2004 Ga. LEXIS 79 (Ga. Jan. 20, 2004).

Subrogee’s claim barred. —

Voluntary payment doctrine in O.C.G.A. § 13-1-13 barred a subrogee/insurer’s claim for contractual indemnification against a subcontractor for damage done to a roadway during a construction project managed by the insured, a general contractor, because the subrogee’s commercial general liability policy only covered damages caused by an unforeseen “accident” or “occurrence” to a third party. Mass. Bay Ins. Co. v. Sunbelt Directional Drilling, Inc., No. 1:07-CV-0408-JOF, 2008 U.S. Dist. LEXIS 20066 (N.D. Ga. Feb. 14, 2008).

Trial court did not err in granting a contractor summary judgment in an insurer’s action to recover for the property damage a church sustained when the contractor installed an air conditioning system because the action was barred by the voluntary payment doctrine since the insurer paid the church for the church’s loss and had no contractual obligation to do so, and under the church’s policy, the insurer could not recover for a loss against a third party unless the loss was paid under the covered property coverage; prior to paying the church, the insurer had full knowledge of the facts pertaining to the loss, having received several reports from an adjuster, and the fact that the insurer had an assignment did not change the result because it was trying to recover the same amount from the contractor that the insurer paid for the loss. Southern Mut. Church Ins. Co. v. ARS Mech., LLC, 306 Ga. App. 748 , 703 S.E.2d 363 , 2010 Ga. App. LEXIS 1048 (2010).

Legal fees paid by spouse who killed other spouse. —

In an estate administrator’s conversion suit against a law firm, the trial court properly granted the law firm summary judgment with regard to the administrator attempting to recover $125,000 in legal fees the decedent’s spouse had paid to the law firm as the law firm accepted the fees from the decedent’s spouse in good faith since it was not determined until sometime later that the spouse had killed the decedent after the spouse pled guilty to the homicide. Further, there was no evidence that the spouse did not have title to the money when the money was paid. Levenson v. Word, 294 Ga. App. 104 , 668 S.E.2d 763 , 2008 Ga. App. LEXIS 1114 (2008), aff'd, 286 Ga. 114 , 686 S.E.2d 236 , 2009 Ga. LEXIS 672 (2009).

Wages voluntarily paid could not be recovered. —

Under an employment contract, a business consultant was granted back wages as a matter of law because the company failed to show that the consultant misled the company about the hours the consultant actually worked and had paid the consultant wages up until the date of termination as a form of severance package, even though the company had concerns that the consultant might not have put in full work weeks; because the company chose not to act on the company’s concerns, the company was barred from recovering wages paid by the voluntary payment doctrine codified at O.C.G.A. § 13-1-13 . Tura v. White Oak Group, Inc., No. 1:07-CV-0379-JOF, 2008 U.S. Dist. LEXIS 77958 (N.D. Ga. Sept. 15, 2008).

Misplaced confidence doctrine applied to payment made after installation. —

Voluntary payment doctrine in O.C.G.A. § 13-1-13 did not bar a customer’s claims alleging that a home improvement store improperly installed the customer’s dryer; although the customer had constructive notice of the installation conditions and the manufacturer’s specifications at the time of payment, the store’s guarantee of a quality, reliable, and professional installation of each dryer that the store sold provided material facts supporting the misplaced confidence exception to the voluntary payment doctrine thereby precluding judgment as a matter of law. Goldstein v. Home Depot U.S.A., Inc., 609 F. Supp. 2d 1340, 2009 U.S. Dist. LEXIS 36134 (N.D. Ga. 2009).

Voluntary payment doctrine not a bar to recovery of excessive notary charges. —

In response to certified questions from a federal action which arose with respect to a mortgagee’s charges that included substantial notary fees from a refinancing transaction, it was determined that the voluntary payment doctrine of O.C.G.A. § 13-1-13 did not bar a breach of contract claim based on the excessiveness of the charges, as there was sufficient artifice, deception, or fraudulent practice by the mortgagee’s misrepresentation under O.C.G.A. § 45-17-11(d) that the charges were “reasonable and necessary.” Anthony v. Am. Gen. Fin. Servs., 287 Ga. 448 , 697 S.E.2d 166 , 2010 Ga. LEXIS 478 (2010).

Payment voluntary regardless of protest by counsel. —

After the debtor arranged to refinance the remaining debt through an investment company, and the parties to the original loan eventually agreed on a payoff amount of $308,982.41, which was wired to the creditor, the payment was a voluntary payment that extinguished the debt memorialized in the original note and security deed, and the fact that counsel for the debtor purported to make the payment with a form of protest did not affect that conclusion; thus, the creditor erred in refusing to cancel the security deed. CB Lending, LLC v. Strategic Property Consulting Group, LLC, 353 Ga. App. 114 , 834 S.E.2d 618 , 2019 Ga. App. LEXIS 576 (2019), cert. denied, No. S20C0586, 2020 Ga. LEXIS 567 (Ga. July 15, 2020).

Involuntary Payments

Failure to disclose salient facts. —

When the breach of duty on which recovery is based is failure to disclose salient facts to the plaintiff, the payments cannot be deemed voluntary within the language of O.C.G.A. § 13-1-13 . City of Commerce v. Duncan & Godfrey, Inc., 157 Ga. App. 337 , 277 S.E.2d 266 , 1981 Ga. App. LEXIS 1812 (1981).

Payment of earnest money under real estate sale contract was not voluntary payment. Williams v. Gottlieb, 90 Ga. App. 438 , 83 S.E.2d 245 , 1954 Ga. App. LEXIS 731 (1954).

Fact that there is pending litigation regarding a party’s obligation to pay money does not render payments made during the litigation involuntary unless the payments come within an exception specified in O.C.G.A. § 13-1-13 . Yeazel v. Burger King Corp., 241 Ga. App. 90 , 526 S.E.2d 112 , 1999 Ga. App. LEXIS 1557 (1999).

No evidence of immediate threat. —

Although the tenant of a commercial lease may have feared that the landlord would take action if the tenant failed to make the payments in the amount demanded, there was no evidence that the payments were made to counter an immediate threat to person or property so as to come within an exception to O.C.G.A. § 13-1-13 . Yeazel v. Burger King Corp., 241 Ga. App. 90 , 526 S.E.2d 112 , 1999 Ga. App. LEXIS 1557 (1999).

Payment to recover possession of personalty wrongfully detained not voluntary. —

Voluntary payments, though illegally demanded, cannot be recovered back. But a payment made for purpose of recovering possession of personal property wrongfully detained is not voluntary, and may be recovered back. This is true when owner does not know who has possession of property, but makes payment to third person to be used in securing release of goods. DuVall v. Norris, 119 Ga. 947 , 47 S.E. 212 , 1904 Ga. LEXIS 416 (1904).

Overcharge of freight paid under protest in order to obtain goods is recoverable. —

Carrier is liable to suit by shipper for recovery of overcharge of freight paid under protest in order to obtain the shipper’s goods and which carrier refused to repay on demand. Southern Ry. v. Schlittler, 1 Ga. App. 20 , 58 S.E. 59 , 1907 Ga. App. LEXIS 133 (1907).

Payment to prevent detention resulting from conviction unsupported by valid ordinance, not voluntary. —

Where one has been convicted in recorder’s court, and no valid ordinance authorizes such conviction, payment of fine to prevent immediate seizure of person is not voluntary payment, and may be recovered back. Rose v. Mayor of Thunderbolt, 89 Ga. App. 599 , 80 S.E.2d 725 , 1954 Ga. App. LEXIS 522 (1954).

Premiums paid to prevent insurer from treating policy as lapsed not voluntary. —

Premiums paid after furnishing proof of disability and required in order to prevent insurer from treating policy as lapsed are recoverable as payments made under urgent and immediate necessity, and are not voluntary. Metropolitan Life Ins. Co. v. Saul, 182 Ga. 284 , 185 S.E. 266 , 1936 Ga. LEXIS 334 (1936).

Payment on condition that difference in amount due to be adjusted later not voluntary. —

Where county commissioners proposed to settle for $1,200.00 all of amount that auditors claimed was due county by clerk of superior and city courts, and clerk on the clerk’s part, to avoid delay, agreed to deposit $1,200.00, on condition that difference as to amount due should be adjusted later, and at same time county commissioners on their part agreed that, if on investigation amount proved to be incorrect, matter would be adjusted by refunding to clerk amount incorrectly charged to the clerk, this was not a voluntary payment, and hence whatever part of $1,200.00 that was incorrectly charged to plaintiff clerk could be recovered as money had and received. Lewis v. Colquitt County, 71 Ga. App. 304 , 30 S.E.2d 801 , 1944 Ga. App. LEXIS 346 (1944).

Shareholder’s payment to avoid seizure of corporate property not involuntary. —

Shareholder’s payment of $70,000 for stock was not considered “involuntary” so as to fall outside the ambit of O.C.G.A. § 13-1-13 , merely because it was made under what the shareholder perceived to be an “urgent and immediate necessity” of preventing another’s “eventual and imminent seizure” of the corporation’s property. Graham v. Cook, 179 Ga. App. 603 , 347 S.E.2d 623 , 1986 Ga. App. LEXIS 1979 (1986).

On facts, payment involuntary. —

See Speed Oil Co. v. Aycock, 188 Ga. 46 , 2 S.E.2d 666 , 1939 Ga. LEXIS 470 (1939).

Mistake

Application to one paying money by mistake, without valid reason for ascertaining truth. —

One paying money by mistake without valid reason for failing to ascertain truth cannot recover payment. Barker v. Federated Life Ins. Co., 111 Ga. App. 171 , 141 S.E.2d 206 , 1965 Ga. App. LEXIS 908 (1965).

Section applies not only when one pays money with knowledge of all facts but also when one pays by mistake without valid reason for failing to ascertain truth. Bohannon v. Manhattan Life Ins. Co., 555 F.2d 1205, 1977 U.S. App. LEXIS 12470 (5th Cir. 1977); Insurance Co. of N. Am. v. Kyla, Inc., 193 Ga. App. 555 , 388 S.E.2d 530 , 1989 Ga. App. LEXIS 1550 (1989).

Money paid under mistake or in ignorance of fact recoverable in appropriate circumstances. —

Even where money is paid under mistake of fact, or in ignorance of facts, the money cannot be recovered, unless circumstances are such that party receiving the money ought not, in equity and good conscience, to be allowed to retain the money. In equity and good conscience refers only to acts and intentions of person receiving money as affecting other party to transaction. If one has acted in good faith and in good conscience with person paying money, one is entitled to retain the money, even if one’s actions and intentions may not have been in good faith and in good conscience as regards other persons not connected with transaction. Bryant v. Guaranty Life Ins. Co., 40 Ga. App. 573 , 150 S.E. 596 , 1929 Ga. App. LEXIS 659 (1929).

While money paid under mistake of fact or in ignorance of facts may be recovered back if circumstances are such that party receiving ought not in equity and good conscience retain the money, to entitle a party to recover back money which the party has paid on ground that the money was paid to defendant through mistake or ignorance of facts, which one sets up as showing there was no legal liability on the party to pay, plaintiff should allege and show on trial that at time of payment plaintiff was mistaken as to such facts or ignorant of their existence. New York Life Ins. Co. v. Williamson, 53 Ga. App. 28 , 184 S.E. 755 , 1936 Ga. App. LEXIS 4 (1936).

In an action for money had and received, the plaintiff generally can recover a payment mistakenly made when that mistake was caused by the plaintiff’s lack of diligence or the plaintiff’s negligence in ascertaining the true facts and the other party would not be prejudiced by refunding the payment, subject to a weighing of the equities between the parties by the trier of fact. Gulf Life Ins. Co. v. Folsom, 256 Ga. 400 , 349 S.E.2d 368 , 1986 Ga. LEXIS 865 (1986); Graham v. Hogan, 185 Ga. App. 842 , 366 S.E.2d 219 , 1988 Ga. App. LEXIS 46 (1988); Landers v. Heritage Bank, 188 Ga. App. 785 , 374 S.E.2d 353 , 1988 Ga. App. LEXIS 1220 (1988).

Where both parties to a construction contract labored under a mutual mistake of fact that there was a valid contract and since plaintiff made the deposit with the defendants in belief that such was required under the contract, then O.C.G.A. § 13-1-13 has no application because the money was not due and payable under a void contract. Cochran v. Ogletree, 244 Ga. App. 537 , 536 S.E.2d 194 , 2000 Ga. App. LEXIS 772 (2000).

Reliance on computer records. —

A jury issue exists as to whether the plaintiff was negligent in relying solely on the plaintiff’s computer, considering the facts of the current widespread use of computers for the purpose of keeping business records, and that, although the computer here, though negligently programmed by the plaintiff’s subsidiary, may not have been known to be inaccurate. Gulf Life Ins. Co. v. Folsom, 256 Ga. 400 , 349 S.E.2d 368 , 1986 Ga. LEXIS 865 (1986).

There is distinction between mistake and ignorance of law and section applicable only to latter. —

There is a distinction between ignorance and mistake of law. Ignorance implies passiveness; mistake implies action. Ignorance does not pretend to knowledge, but mistakes assumes to know. Ignorance may be result of laches, but mistake argues diligence. Mere ignorance is no mistake, but mistake involves more than ignorance. Hence, the statute does not apply to money paid under mistake of law. Whitehurst v. Mason, 140 Ga. 148 , 78 S.E. 938 , 1913 Ga. LEXIS 60 (1913).

Money paid under mistaken apprehension of liability not recoverable. —

There can be no recovery of money paid by lodge as funeral expenses for member when the amounts were paid out under mistaken apprehension as to lodge’s liability for amount of that benefit. Chapman v. Ellis, 58 Ga. App. 614 , 199 S.E. 650 , 1938 Ga. App. LEXIS 66 (1938).

Affidavit that insurance paid without knowledge of payment by another not proving lack of knowledge. —

Affidavit by insurer which stated that claim was paid without knowledge of any other policy or that payments had been made under any other policy was not sufficient to prove lack of knowledge. Aetna Life Ins. Co. v. Cash, 121 Ga. App. 8 , 172 S.E.2d 629 , 1970 Ga. App. LEXIS 1074 (1970).

Mistake of law. —

While money voluntarily paid may not ordinarily be recovered, this rule is not without exception. If payment was made in ignorance of law, recovery is barred; if in mistake of law, recovery is permitted. Emond v. State Farm Mut. Auto. Ins. Co., 175 Ga. App. 548 , 333 S.E.2d 656 , 1985 Ga. App. LEXIS 2158 (1985).

Duress

In order for payment to be involuntary it must be paid under duress, and if payment is made under urgent and immediate necessity therefor or to prevent an immediate seizure of person or property, it is made under duress. Taranto v. Richardson, 50 Ga. App. 851 , 179 S.E. 202 , 1935 Ga. App. LEXIS 294 (1935).

Disadvantage and unequal bargaining power not grounds of duress. —

One may not void a contract on grounds of duress merely because one entered into the contract with reluctance, the contract was very disadvantageous to the party, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement. Graham v. Cook, 179 Ga. App. 603 , 347 S.E.2d 623 , 1986 Ga. App. LEXIS 1979 (1986).

Threat of prosecution not necessarily duress. —

Mere threats of prosecution of one who has committed no crime, or by one who has apparently made no moves toward carrying out of such threats, do not amount to duress in law. Taranto v. Richardson, 50 Ga. App. 851 , 179 S.E. 202 , 1935 Ga. App. LEXIS 294 (1935).

Claim for rescission of a settlement agreement was meritless where, at the time of the settlement, plaintiff was acting on a court order with full knowledge of all the extant facts and was not under immediate threat of seizure of property. Sellers Bros., Inc. v. Imperial Flowers, Inc., 232 Ga. App. 687 , 503 S.E.2d 573 , 1998 Ga. App. LEXIS 787 (1998), cert. denied, No. S98C1510, 1998 Ga. LEXIS 1017 (Ga. Oct. 23, 1998).

General Consideration

Court’s role generally. —

When parties disagree only as to the legal meaning of their agreement, the court’s role is well-defined. When the language of the agreement is clear, then it is controlling, and the court need look no further. This principle is the obverse of the broad freedom of contract the law grants the parties. Smith v. Seaboard Coast Line R.R., 639 F.2d 1235, 1981 U.S. App. LEXIS 19213 (5th Cir. 1981).

Existence or nonexistence of ambiguity in a contract is a question of law for the court. Salvatori Corp. v. Rubin, 159 Ga. App. 369 , 283 S.E.2d 326 , 1981 Ga. App. LEXIS 2611 (1981).

Under state law whether a contract is ambiguous is to be determined by the court. Kaiser Aluminum & Chem. Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60, 1981 U.S. Dist. LEXIS 15149 (S.D. Ga. 1981).

No construction where language plain, unambiguous, and capable of only one meaning. —

No construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation. Franchise Enters., Inc. v. Ridgeway, 157 Ga. App. 458 , 278 S.E.2d 33 , 1981 Ga. App. LEXIS 1868 (1981); Crooks v. Crim, 159 Ga. App. 745 , 285 S.E.2d 84 , 1981 Ga. App. LEXIS 2738 (1981).

Construction and interpretation subject to disposition by summary judgment. —

Construction and interpretation of a written contract is matter of law for the court and, therefore, is properly subject to disposition by summary judgment. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033, 1981 U.S. Dist. LEXIS 9561 (S.D. Ga. 1981), aff'd, 667 F.2d 30, 1982 U.S. App. LEXIS 22211 (11th Cir. 1982).

Where no matter of fact is involved, the construction of a plain and definite contract, if needed, is a matter of law for the court. Crooks v. Crim, 159 Ga. App. 745 , 285 S.E.2d 84 , 1981 Ga. App. LEXIS 2738 (1981).

Construction must be fair and reasonable. —

In construing a contract, the court must put a fair and reasonable construction thereon. Smiths' Properties, Inc. v. RTM Enters., Inc., 160 Ga. App. 102 , 286 S.E.2d 334 , 1981 Ga. App. LEXIS 2903 (1981).

If terms of contract are plain and unambiguous, construction is for court rather than jury. Gulbenkian v. Patcraft Mills, Inc., 104 Ga. App. 102 , 121 S.E.2d 179 , 1961 Ga. App. LEXIS 615 (1961); Gilreath v. Argo, 135 Ga. App. 849 , 219 S.E.2d 461 , 1975 Ga. App. LEXIS 1849 (1975).

If contract is plain and unambiguous, it is duty of trial court to construe the contract. Paulk v. Ellis St. Realty Corp., 79 Ga. App. 36 , 52 S.E.2d 625 , 1949 Ga. App. LEXIS 581 (1949).

Construction of unambiguous contract is question of law for court. Mutual Life Ins. Co. v. Davis, 79 Ga. App. 336 , 53 S.E.2d 571 , 1949 Ga. App. LEXIS 649 (1949); Early v. Kent, 215 Ga. 49 , 108 S.E.2d 708 , 1959 Ga. LEXIS 387 (1959).

In the absence of ambiguities, construction of contract is question of law for court. Suggs v. Brotherhood of Locomotive Firemen & Enginemen, 106 Ga. App. 563 , 127 S.E.2d 827 , 1962 Ga. App. LEXIS 772 (1962); International Indus., Inc. v. Dantone, 147 Ga. App. 247 , 248 S.E.2d 530 , 1978 Ga. App. LEXIS 2636 (1978).

The construction of a contract is a question of law for the court. If the contract is unambiguous, it is the duty of the court to construe the contract. Smiths' Properties, Inc. v. RTM Enters., Inc., 160 Ga. App. 102 , 286 S.E.2d 334 , 1981 Ga. App. LEXIS 2903 (1981).

Construction of contracts is a question of law for court and where judge sits as trier of fact the judge’s findings shall not be set aside unless clearly erroneous. Nodvin v. Krabe, 160 Ga. App. 310 , 287 S.E.2d 236 , 1981 Ga. App. LEXIS 2974 (1981).

In view of the clear and unambiguous language of the contract, it was the duty and within the authority of the trial court to construe the contract. Long v. City of Midway, 169 Ga. App. 72 , 311 S.E.2d 508 , 1983 Ga. App. LEXIS 2984 (1983).

Where the language of a lease is clear, unambiguous, and capable of only one reasonable interpretation, no construction is necessary or even permissible. Reahard v. Ivester, 188 Ga. App. 17 , 371 S.E.2d 905 , 1988 Ga. App. LEXIS 889 (1988).

Contractual interpretation is question of law for court. B.L. Ivey Constr. Co. v. Pilot Fire & Cas. Co., 295 F. Supp. 840, 1968 U.S. Dist. LEXIS 9835 (N.D. Ga. 1968).

Unless there are ambiguous expressions in a contract, a contract’s construction is for a court. Merrill Lynch, Pierce, Fenner & Smith v. Stidham, 506 F. Supp. 1182, 1981 U.S. Dist. LEXIS 11783 (M.D. Ga.), aff'd in part, vacated in part, 658 F.2d 1098, 1981 U.S. App. LEXIS 16846 (5th Cir. 1981).

Construction of unambiguous contracts is for court, but it is province of jury to construe ambiguous contracts. Trippe v. Crescent Farms, Inc., 58 Ga. App. 1 , 197 S.E. 330 , 1938 Ga. App. LEXIS 164 (1938).

Ordinarily the construction of a contract is a question of law for the court, but where the terms of a written instrument are ambiguous, the contract’s meaning should be left to the jury. Salvatori Corp. v. Rubin, 159 Ga. App. 369 , 283 S.E.2d 326 , 1981 Ga. App. LEXIS 2611 (1981).

Adjudication by summary judgment. —

The construction of a contract is a matter of law for the court under O.C.G.A. § 13-2-1 , particularly where the terms are unambiguous. It is thus a matter peculiarly well suited for adjudication by summary judgment. Castellana v. Conyers Toyota, Inc., 200 Ga. App. 161 , 407 S.E.2d 64 , 1991 Ga. App. LEXIS 799 (1991).

Summary judgment was properly granted to a hospital pursuant to O.C.G.A. § 9-11-56 in the hospital’s action against a doctor, seeking recovery of moneys loaned to the doctor that were not repaid, where it was found that the doctor breached the agreement within six years of the time that the action was commenced and accordingly, the action was not time-barred under O.C.G.A. § 9-3-24 ; the court noted that where the parties had indicated in the contract that they “expected” that the amount would be completely repaid within one year of when the repayments were commenced, such was merely a hope and not a binding condition that, when the year expired, started the running of the six-year limitations period, based on contract interpretation laws and the inapplicability of parol evidence under O.C.G.A. § 13-2-1(1). Walker v. Gwinnett Hosp. Sys., 263 Ga. App. 554 , 588 S.E.2d 441 , 2003 Ga. App. LEXIS 1184 (2003).

Unpublished decision: In an examinee’s suit alleging that a testing service breached the parties’ contract by failing to release the examinee’s test results on the ground that the examinee did not present valid identification at the time of the test, because the terms of the contract requiring the examinee to present valid photo identification at the test site were plain and unambiguous, construction of the contract was a question of law that a district court resolved on summary judgment in accordance with O.C.G.A. § 13-2-1 . Sims v. Taylor, 270 Fed. Appx. 940, 2008 U.S. App. LEXIS 6770 (11th Cir. 2008).

Jury question presented where rules of construction fail to resolve ambiguity. —

Even ambiguous contracts may be construed by the courts, and a jury question is presented only when the application of the rules of construction fails to resolve the ambiguity. Andrews v. Skinner, 158 Ga. App. 229 , 279 S.E.2d 523 , 1981 Ga. App. LEXIS 2139 (1981).

If an ambiguity remains after application of all applicable rules of construction, then a jury question is presented. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033, 1981 U.S. Dist. LEXIS 9561 (S.D. Ga. 1981), aff'd, 667 F.2d 30, 1982 U.S. App. LEXIS 22211 (11th Cir. 1982).

Construction of written contracts, even if they are ambiguous, is a matter for the court and no jury question arises unless after application of applicable rules of construction the ambiguity remains. Interstate Fire Ins. Co. v. National Indem. Co., 157 Ga. App. 516 , 277 S.E.2d 802 , 1981 Ga. App. LEXIS 1886 (1981).

Once a contract is signed, the contract’s provisions define the full measure of rights accorded each party. Whether the language of an agreement is clear or ambiguous, then, is a question of law for the court. Only if ambiguity remains after the court applies the pertinent rules of construction does this become a question of fact. Smith v. Seaboard Coast Line R.R., 639 F.2d 1235, 1981 U.S. App. LEXIS 19213 (5th Cir. 1981).

Courts not at liberty to revise contracts while construing contracts. —

If provisions of contract are unambiguous, the contract’s interpretation is question of law for trial court. However, courts are not at liberty to revise contracts while professing to construe the contracts. Brigadier Indus. Corp. v. Pippin, 148 Ga. App. 145 , 251 S.E.2d 114 , 1978 Ga. App. LEXIS 3054 (1978).

If the provisions of a contract are unambiguous, and interpretation is made by the court, still this does [not] give the trial court liberty to revise the contract while professing to construe the contract. Crooks v. Crim, 159 Ga. App. 745 , 285 S.E.2d 84 , 1981 Ga. App. LEXIS 2738 (1981).

Not court’s province to pass on wisdom of particular agreement, even though the agreement’s terms may have been accepted by one party as the result of oversight or poor cerebration. Smith v. Seaboard Coast Line R.R., 639 F.2d 1235, 1981 U.S. App. LEXIS 19213 (5th Cir. 1981).

Mistake or ignorance of party. —

Absent special circumstances, the court cannot correct for the mistake or ignorance of one party when that party had the responsibility and opportunity to protect oneself. Smith v. Seaboard Coast Line R.R., 639 F.2d 1235, 1981 U.S. App. LEXIS 19213 (5th Cir. 1981).

Whether or not a writing is an enforceable contract under the securities statute of frauds is a legal question. Turner v. MCI Telecommunications Corp., 203 Ga. App. 71 , 416 S.E.2d 370 , 1992 Ga. App. LEXIS 375 (1992).

Contract existence was question of fact for a jury. —

Summary judgment was improperly granted to an insurance broker in a contract dispute because there was conflicting testimony regarding the course of dealings between the party relating to whether or not a contract existed under O.C.G.A. §§ 13-3-1 and 13-3-2 ; the question of fact should have been decided by a jury instead. Terry Hunt Constr., Inc. v. AON Risk Servs., 272 Ga. App. 547 , 613 S.E.2d 165 , 2005 Ga. App. LEXIS 326 (2005).

Intent of Parties

Cardinal rule of construction is to ascertain intent of parties. Mutual Life Ins. Co. v. Davis, 79 Ga. App. 336 , 53 S.E.2d 571 , 1949 Ga. App. LEXIS 649 (1949).

Enforcement where intent clear. —

If intention of the parties is clear, and it contravenes no rule of law, and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction. Olympic Dev. Group, Inc. v. American Druggists' Ins. Co., 175 Ga. App. 425 , 333 S.E.2d 622 , 1985 Ga. App. LEXIS 2110 (1985).

In a buyer’s suit arising out of a failed deal to sell the seller’s business seeking damages for breach of contract and specific performance, the trial court erred in granting summary judgment to the sellers, as construction of the plain language of an addendum to the parties’ letter of intent to sell the business showed that the parties had reached a binding agreement on all material terms concerning the purchase and sale of the business. Goobich v. Waters, 283 Ga. App. 53 , 640 S.E.2d 606 , 2006 Ga. App. LEXIS 1359 (2006), cert. denied, No. S07C0618, 2007 Ga. LEXIS 271 (Ga. Mar. 26, 2007).

Following a bench trial, the trial court properly awarded a lessee a monetary judgment, and the lessor’s possession of the premises as the clear language of the underlying contract between the parties provided that the parties intended the contract to be a purchase and sale agreement, and the lessor’s failure to perform barred the court from enforcing a liquidated damages provision. Lifestyle Home Rentals, LLC v. Rahman, 290 Ga. App. 585 , 660 S.E.2d 409 , 2008 Ga. App. LEXIS 373 (2008).

Written contract that is plain and unambiguous is only evidence of parties’ intent and understanding. Rauschenberg v. Peeples, 30 Ga. App. 384 , 118 S.E. 409 , 1923 Ga. App. LEXIS 486 (1923).

No ambiguity unless, after application of rules of construction, uncertainty remains as to intent. —

Construction of contract when necessary is duty of court, and there can be no ambiguity 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 Ga. App. LEXIS 607 (1949), overruled, Etheridge v. Woodmen of World Life Ins. Soc., 114 Ga. App. 807 , 152 S.E.2d 773 , 1966 Ga. App. LEXIS 923, 1966 Ga. App. LEXIS 1259 (1966); Early v. Kent, 215 Ga. 49 , 108 S.E.2d 708 , 1959 Ga. LEXIS 387 (1959).

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 Ga. App. LEXIS 704, 1949 Ga. App. LEXIS 705 (1949).

If terms of a contract are ambiguous, intention of parties is question for jury. Williams v. McCoy Lumber Indus., Inc., 146 Ga. App. 380 , 246 S.E.2d 410 , 1978 Ga. App. LEXIS 2364 (1978).

No intent in agreement to give up rights in land. —

City and an apartment owner, in entering a 1954 agreement for the construction of a parking lot and sidewalk, never intended to create public property rights in the owner’s land; rather, the purpose of the agreement was to relieve traffic congestion along an abutting street. The agreement’s language showed that the owner had no intention of giving up control of the owner’s property; the land was not dedicated to the city or burdened with an easement, and the owner paid taxes on the entire area. Unified Gov't of Athens-Clarke Co. v. Stiles Apts., 295 Ga. 829 , 764 S.E.2d 403 , 2014 Ga. LEXIS 744 (2014).

Intent of parties at time of contract. —

It is generally question of fact for determination of jury as to what is included within contemplation of parties at time contract is made. McNaughton v. Stephens, 8 Ga. App. 545 , 70 S.E. 61 , 1911 Ga. App. LEXIS 33 (1911).

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 them for the parties, because those communications led to a binding agreement between them, 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 Ga. App. LEXIS 337 (2008).

As a matter of law under O.C.G.A. § 13-2-1 , a contract under which a marketer trained subagents to expand an insurer’s market for health, medical, and surgical (HMS) insurance products was not ambiguous because it was clear from the four corners of the instrument that the insurer had a right to discontinue the HMS sales plan at any time without terminating the contract; therefore, the complaint failed to state a claim for breach of contract. Med S. Health Plans, LLC v. Life of the S. Ins. Co., No. 4:07-CV-134, 2008 U.S. Dist. LEXIS 40223 (M.D. Ga. May 19, 2008).

Ambiguous Agreements

Courts to construe ambiguous contracts, and only where ambiguity persists is jury question raised. —

Although there is ambiguity in contract, the contract raises no jury question unless ambiguity remains unresolved after application of all applicable rules of construction. Farm Supply Co. v. Cook, 116 Ga. App. 814 , 159 S.E.2d 128 , 1967 Ga. App. LEXIS 972 (1967).

Construction of contracts is prerogative of courts which is delegated to jury only when there are ambiguous expressions in contract and resort must be had to extrinsic testimony in order to clarify meaning of language used, as it was understood by parties, and thus make plain their real intention. Ludden & Bates S. Music House v. Dairy & Farm Supply Co., 17 Ga. App. 581 , 87 S.E. 823 , 1916 Ga. App. LEXIS 799 (1916). See Martin v. Thrower, 3 Ga. App. 784 , 60 S.E. 825 , 1908 Ga. App. LEXIS 431 (1908); Irvindale Farms, Inc. v. W.O. Pierce Dairy, Inc., 78 Ga. App. 670 , 51 S.E.2d 712 , 1949 Ga. App. LEXIS 958 (1949); Krupp v. Taylor Enters., Inc., 148 Ga. App. 440 , 251 S.E.2d 364 , 1978 Ga. App. LEXIS 3185 (1978).

Contracts, even when ambiguous, are to be construed by court, and no jury question is presented unless after application of applicable rules of construction ambiguity persists. American Cas. Co. v. Crain-Daly Volkswagen, Inc., 129 Ga. App. 576 , 200 S.E.2d 281 , 1973 Ga. App. LEXIS 1062 (1973); National Car Rental Sys. v. Council Whsle. Distribs., Inc., 393 F. Supp. 1128, 1974 U.S. Dist. LEXIS 11531 (M.D. Ga. 1974); Erquitt v. Solomon, 135 Ga. App. 502 , 218 S.E.2d 172 , 1975 Ga. App. LEXIS 1717 (1975); Interstate N. Assocs. v. Hensley-Schmidt, Inc., 138 Ga. App. 487 , 226 S.E.2d 315 , 1976 Ga. App. LEXIS 2204 (1976); Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715 , 234 S.E.2d 363 , 1977 Ga. App. LEXIS 2058 (1977); Kennedy v. Brand Banking Co., 152 Ga. App. 47 , 262 S.E.2d 177 , 1979 Ga. App. LEXIS 2807 (1979), aff'd in part and rev'd in part, 245 Ga. 496 , 266 S.E.2d 154 , 1980 Ga. LEXIS 832 (1980), vacated in part, 154 Ga. App. 378 , 268 S.E.2d 449 , 1980 Ga. App. LEXIS 2177 (1980); Travelers Ins. Co. v. Blakey, 255 Ga. 699 , 342 S.E.2d 308 , 1986 Ga. LEXIS 662 (1986); Smith v. Freeport Kaolin Co., 687 F. Supp. 1550, 1988 U.S. Dist. LEXIS 4913 (M.D. Ga. 1988).

A contract should be construed by the court where the language is undisputed but the meaning of that language is in dispute. Board of Regents v. A.B. & E., Inc., 182 Ga. App. 671 , 357 S.E.2d 100 , 1987 Ga. App. LEXIS 1785 (1987).

In an action for breach of a written employment contract, it was not error for the trial court to refuse the employer’s requested charge that essential terms of the contract had to be stated with definiteness in the contract to show the intent of the parties where the court had resolved the ambiguities in the contract and there was no matter of fact to be found by the jury. Gram Corp. v. Wilkinson, 210 Ga. App. 680 , 437 S.E.2d 341 , 1993 Ga. App. LEXIS 1306 (1993).

Only where contractual provision is ambiguous does interpretation of the provision become a jury question. Maggard Truck Line v. Deaton, Inc., 573 F. Supp. 1388, 1983 U.S. Dist. LEXIS 12470 (N.D. Ga. 1983), aff'd in part, 783 F.2d 203, 1986 U.S. App. LEXIS 21858 (11th Cir. 1986).

Meanings of ambiguous terms in written instrument for jury determination. —

As general rule, construction of contract is question for court; but where the terms of a written instrument are ambiguous, the instruments meaning should be left to the jury. Illges v. Dexter, 77 Ga. 36 , 1886 Ga. LEXIS 275 (1886); Pidcock v. Nace, 15 Ga. App. 794 , 84 S.E. 226 , 1915 Ga. App. LEXIS 64 (1915); Schofield-Burkett Constr. Co. v. Rich, 16 Ga. App. 321 , 85 S.E. 285 , 1915 Ga. App. LEXIS 611 (1915); Fraser v. Jarrett, 153 Ga. 441 , 112 S.E. 487 , 1922 Ga. LEXIS 99 (1922); Rauschenberg v. Peeples, 30 Ga. App. 384 , 118 S.E. 409 , 1923 Ga. App. LEXIS 486 (1923); National Manufacture & Stores Corp. v. Dekle, 48 Ga. App. 515 , 173 S.E. 408 , 1934 Ga. App. LEXIS 116 (1934); Olympic Dev. Group, Inc. v. American Druggists' Ins. Co., 175 Ga. App. 425 , 333 S.E.2d 622 , 1985 Ga. App. LEXIS 2110 (1985).

Except in cases where meaning of obscurely written words is involved, and where there is evidence tending to show that meaning of such words was differently understood in one way or another by parties to contract, it is improper to submit to jury any question as to construction of contract. American Cas. Co. v. Crain-Daly Volkswagen, Inc., 129 Ga. App. 576 , 200 S.E.2d 281 , 1973 Ga. App. LEXIS 1062 (1973).

Construction of a contract is a question of law for the court where language of contract is clear and unambiguous and capable of only one reasonable interpretation as applied to subject matter, but if any matter of fact is involved, such as proper reading of obscurely written word, the jury should find the fact. Bress v. Keep-Safe Indus., Inc., 155 Ga. App. 544 , 271 S.E.2d 867 , 1980 Ga. App. LEXIS 2667 (1980).

Term “willful” in contract ambiguous and had to be determined by a jury. —

Trial court erred in granting a buyer partial summary judgment on the buyer’s breach of contract claim against the sellers because the conflicting evidence established that a genuine issue of material fact existed as to whether the sellers defaulted on the option agreement in bad faith and whether the default was willful; as such, a jury must resolve whether the sellers’ default was willful, which will determine whether the buyer could recover damages for breach of contract under the option agreement. Garrett v. S. Health Corp. of Ellijay, Inc., 320 Ga. App. 176 , 739 S.E.2d 661 , 2013 Ga. App. LEXIS 151 (2013).

Fact that two interpretations of contract possible does not automatically create jury question. Kennedy v. Brand Banking Co., 152 Ga. App. 47 , 262 S.E.2d 177 , 1979 Ga. App. LEXIS 2807 (1979), aff'd in part and rev'd in part, 245 Ga. 496 , 266 S.E.2d 154 , 1980 Ga. LEXIS 832 (1980), vacated in part, 154 Ga. App. 378 , 268 S.E.2d 449 , 1980 Ga. App. LEXIS 2177 (1980).

Jury issue not created by fact of two possible interpretations of contract. —

It does not follow that merely because there are two possible interpretations which might be employed in construing a contract, the matter automatically becomes question for jury. If that were true courts would rarely, if ever, construe contracts as the law declares their duty to be. Role and function of courts is higher than that of mere referee. Warrior Constructors, Inc. v. E.C. Ernst Co., 127 Ga. App. 839 , 195 S.E.2d 261 , 1973 Ga. App. LEXIS 1662 (1973); Interstate N. Assocs. v. Hensley-Schmidt, Inc., 138 Ga. App. 487 , 226 S.E.2d 315 , 1976 Ga. App. LEXIS 2204 (1976).

Mere clerical error. —

In a taxpayer’s action against the Internal Revenue Service (IRS), under 28 U.S.C. § 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 and 13-2-2(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, 2005 U.S. App. LEXIS 16852 (11th Cir. 2005).

Disability insurance policy. —

In interpreting a disability insurance policy as a question of law under O.C.G.A. § 13-2-1 , the district court properly granted summary judgment in favor of an insured on a claim for total disability benefits in relation to a real estate development occupation because the ambiguous language in the policy required the insured to be unable to perform “most,” not “all,” of the substantial and material duties of the insured’s regular occupation, and the insured’s unrefuted medical evidence showed that the insured was unable to perform the entrepreneurial, financial, planning, coordinating, and administrative duties, which were the heart of the real estate occupation. Giddens v. Equitable Life Assur. Soc'y, 445 F.3d 1286, 2006 U.S. App. LEXIS 8970 (11th Cir. 2006).

After determining that the definition of the term “total disability” in two of an insurer’s disability policies was ambiguous and construing the term against the insurer, such that an 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, pursuant to O.C.G.A. § 13-2-1 , the court left for the jury the issues of what sort of work constituted the insured’s major duties and whether the insured’s stroke rendered the insured unable to perform those duties, as the evidence was conflicting with regard to whether the insured was a pharmacist or an entrepreneur. Putnal v. Guardian Life Ins. Co. of Am., No. 5:04-CV-130, 2006 U.S. Dist. LEXIS 70931 (M.D. Ga. Sept. 29, 2006).

Admissibility of Parol Evidence

Where contract complete, parol evidence generally admissible only as to ambiguities. —

Where contract appears complete on its face, 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 question. McCann v. Glynn Lumber Co., 199 Ga. 669 , 34 S.E.2d 839 , 1945 Ga. LEXIS 344 (1945).

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 Ga. App. LEXIS 509 (2016).

Extrinsic evidence admissible to explain ambiguity only after application of rules of construction. —

Construction of ambiguous contracts is duty of court, and only if after application of pertinent rules of construction the contract remains ambiguous, is extrinsic evidence admissible to explain ambiguity. Farm Supply Co. v. Cook, 116 Ga. App. 814 , 159 S.E.2d 128 , 1967 Ga. App. LEXIS 972 (1967); Warrior Constructors, Inc. v. E.C. Ernst Co., 127 Ga. App. 839 , 195 S.E.2d 261 , 1973 Ga. App. LEXIS 1662 (1973).

If application of statutory rules resolves all contract ambiguity, then extrinsic evidence is inadmissible. Bituminous Cas. Corp. v. Advanced Adhesive Tech., Inc., 73 F.3d 335, 1996 U.S. App. LEXIS 836 (11th Cir. 1996).

Parol testimony for ascertaining intention of parties if contract is ambiguous. —

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 Ga. App. LEXIS 379 (2008).

Application

Conflicting dates in contract. —

When text of contract stated contract was to commence on July 1, but date two weeks later appeared at end of contract, early date is the one to which parties are bound. American Cyanamid Co. v. Ring, 248 Ga. 673 , 286 S.E.2d 1 , 1982 Ga. LEXIS 1078 (1982).

Construction of unambiguous deed, like construction of any other contract, is for court determination. Its meaning and effect is question of law to be settled by judge. Turk v. Jeffreys-McElrath Mfg. Co., 207 Ga. 73 , 60 S.E.2d 166 , 1950 Ga. LEXIS 395 (1950).

Construction of an O.C.G.A. § 20-3-514 scholarship contract. —

Under the plain terms of the contract, the trial court did not err in awarding summary judgment to the State Medical Education Board, making a student liable for both the amount of the scholarship received and attorney’s fees as: (1) estoppels were unfavored under Georgia law; (2) the student came forward with no more than hearsay to support a claim that oral misrepresentations of fact were made regarding the scholarship; (3) the contract was not rescinded by either party; (4) no mutual mistake of fact was found; and (5) any impossibility in performing the contract was personal to the student. Calabro v. State Med. Educ. Bd., 283 Ga. App. 113 , 640 S.E.2d 581 , 2006 Ga. App. LEXIS 1561 (2006).

Claim of ownership of property. —

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 Ga. App. LEXIS 654 (2006), cert. denied, No. S06C1728, 2006 Ga. LEXIS 767 (Ga. Sept. 8, 2006).

Real estate contracts. —

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 and 13-2-2 . Ali v. Aarabi, 264 Ga. App. 64 , 589 S.E.2d 827 , 2003 Ga. App. LEXIS 1298 (2003), cert. denied, No. S04C0518, 2004 Ga. LEXIS 223 (Ga. Mar. 1, 2004).

In a buyer’s suit seeking specific performance of a land sales contract that contained a clear and unambiguous clause stating that time was of the essence, the trial court properly granted summary judgment against the buyer, due to the buyer’s failure to timely tender additional earnest money, and because that action amounted to a breach authorizing the sellers to terminate the agreement. Chowhan v. Miller, 283 Ga. App. 749 , 642 S.E.2d 428 , 2007 Ga. App. LEXIS 185 (2007).

Option agreements. —

Where an option agreement contained no provision for suspending or tolling the five-year option period, seller’s notice of intent to build on the property did not suspend the option period. Garvin v. Smith, 235 Ga. App. 897 , 510 S.E.2d 863 , 1999 Ga. App. LEXIS 17 (1999).

Construction of the provisions of a lease, as with other contracts, is generally one for the court to determine as a matter of law. Peachtree on Peachtree Investors, Ltd. v. Reed Drug Co., 251 Ga. 692 , 308 S.E.2d 825 , 1983 Ga. LEXIS 951 (1983); Winburn v. McGuire Inv. Group, # 17, 220 Ga. App. 384 , 469 S.E.2d 477 , 1996 Ga. App. LEXIS 203 (1996).

Construction of mining lease is generally one for court to determine as a matter of law, and as such, the interpretation of such a written contract regarding the mining of certain materials from described property is properly subject to disposition by summary judgment. Smith v. Freeport Kaolin Co., 687 F. Supp. 1550, 1988 U.S. Dist. LEXIS 4913 (M.D. Ga. 1988).

Construction of lease. —

Despite a tenant’s contrary claim on appeal, when the tenant sought early termination of a lease, the tenant’s conduct was governed by the early termination provision, and not a hold-over provision contained therein. Thus, the trial court properly construed the lease against the tenant when the tenant acted in a manner inconsistent with the tenant’s intent to terminate the lease, supporting judgment for the rent due in the landlord’s favor and in the amount the landlord claimed. ValuGym, Inc. v. PTC Props., Inc., 290 Ga. App. 281 , 659 S.E.2d 700 , 2008 Ga. App. LEXIS 298 (2008).

A trial court erred in interpreting a commercial lease amendment so as to require the tenant to pay additional rental fees for utilities. No such construction was permitted because the language of the contract was plain, unambiguous, and capable of only one reasonable interpretation. Record Town, Inc. v. Sugarloaf Mills L.P., 301 Ga. App. 367 , 687 S.E.2d 640 , 2009 Ga. App. LEXIS 1383 (2009).

Construction contract interpretation. —

Trial court erred in granting summary judgment to a subcontractor in its breach of contract action against a general contractor and its surety, arising from the parties’ work on a construction project, as the court interpreted the terms of the parties’ contract pursuant to O.C.G.A. § 13-2-1 to mean that the general contractor was entitled to withhold final payment to the subcontractor pursuant to O.C.G.A. § 13-11-3 when the suppliers’ bills were not paid, and the general contractor was also entitled to offset that final payment by amounts owed to the suppliers, as the risk of loss was on the subcontractor. Foster & Co. Gen. Contrs., Inc. v. House HVAC/Mechanical, Inc., 277 Ga. App. 595 , 627 S.E.2d 188 , 2006 Ga. App. LEXIS 160 (2006).

Tenant required to maintain property under lease in “tenantable” condition. —

See Capitol Funds, Inc. v. Arlen Realty, Inc., 755 F.2d 1544, 1985 U.S. App. LEXIS 28500 (11th Cir. 1985).

Construction of insurance contract is, like any contract, ordinarily a matter for court. Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga. App. 883 , 176 S.E.2d 103 , 1970 Ga. App. LEXIS 1381 (1970).

Insurance policies being contracts, matter of construction is for court. American Cas. Co. v. Crain-Daly Volkswagen, Inc., 129 Ga. App. 576 , 200 S.E.2d 281 , 1973 Ga. App. LEXIS 1062 (1973).

Insurance policy is simply a contract, provisions of which to be construed as any other contract. Mutual Life Ins. Co. v. Davis, 79 Ga. App. 336 , 53 S.E.2d 571 , 1949 Ga. App. LEXIS 649 (1949).

When an insurer sought a declaratory judgment defining the insurer’s rights and responsibilities under an insurance policy issued to an insured cemetery that was sued for desecrating a grave, the construction of the policy was a matter for the court which could be resolved by summary judgment. Nationwide Mut. Fire Ins. Co. v. Somers, 264 Ga. App. 421 , 591 S.E.2d 430 , 2003 Ga. App. LEXIS 1496 (2003).

Construction of a contract of insurance, like any contract, is a question of law for the court. Giles v. National Union Fire Ins. Co., 578 F. Supp. 376, 1984 U.S. Dist. LEXIS 19971 (M.D. Ga. 1984).

Construction of terms in insurance contract. — Term “landslide” as used in the coverage provisions of an insurance policy did not apply only to natural occurring events, when no such restriction was contained within the policy language and since, inter alia, other clauses listing perils insured against placed specific restrictions on broad terms; to the extent there was any ambiguity in the use of the term landslide, it was interpreted against the insurance company. Auto-Owners Ins. Co. v. Parks, 278 Ga. App. 444 , 629 S.E.2d 118 , 2006 Ga. App. LEXIS 343 (2006).

In an action filed against an insurer seeking coverage under a homeowners policy, the insureds were properly denied coverage for damages to a home they did not live in, as the policy at issue clearly stated that the “insured premises” meant the residence the insureds used as a primary residence. Varsalona v. Auto-Owners Ins. Co., 281 Ga. App. 644 , 637 S.E.2d 64 , 2006 Ga. App. LEXIS 1185 (2006).

In interpreting an insurance contract, damage to the insured motel was covered by a $1.9 million policy limit because limiting the entire cause of loss to the $100,000 sewer limit when both water and sewer were covered causes of loss would have effectively eliminated the water coverage from the policy. Covington Lodging, Inc. v. W. World Ins. Grp. (In re Covington Lodging Inc.), 635 Bankr. 675, 2021 Bankr. LEXIS 2519 (Bankr. N.D. Ga. 2021).

Construction of insurance contract. — As a matter of contract construction, the anti-concurrent cause (ACC) clause did not apply to eliminate coverage for damage caused by a water pipe break and sewer back up, even if such damage was concurrent and inseparable, because the insured motel purchased the Sewer Endorsement at issue, which made the sewer pipe backup a covered cause of loss. Covington Lodging, Inc. v. W. World Ins. Grp. (In re Covington Lodging Inc.), 635 Bankr. 675, 2021 Bankr. LEXIS 2519 (Bankr. N.D. Ga. 2021).

Change in beneficiary in life insurance policy. —

As a spouse designated the spouse’s child as the beneficiary in an old life insurance policy, the new policy did not invalidate this designation, and questions of material fact remained as to whether the spouse’s alleged intent to change beneficiaries was ever effectuated according to the new insurer’s regulations, the surviving spouse was not entitled to summary judgment on that spouse’s claim to be the beneficiary of the new policy. Greater Ga. Life Ins. Co. v. Eason, 292 Ga. App. 682 , 665 S.E.2d 725 , 2008 Ga. App. LEXIS 834 (2008), cert. denied, No. S08C1893, 2008 Ga. LEXIS 882 (Ga. Oct. 27, 2008).

Insured’s duty to defend in racial discrimination suit. —

Insurer was not required to defend its insureds in a race discrimination suit filed by potential property buyers who alleged that the insureds violated state and federal law by refusing to sell the buyers a lot in a subdivision because the buyers were a bi-racial couple since: (1) the court decided as a matter of law, under O.C.G.A. § 13-2-1 , that the bodily injury provision of the commercial general liability policy was unambiguous and did not provide coverage because the buyers did not allege that the buyers were physically injured by the insureds’ actions; and (2) the court decided as a matter of law, under O.C.G.A. § 13-2-1 , that the policy’s personal injury provision, which applied to personal injuries sustained when a right of occupancy was invaded, was unambiguous and did not provide coverage because the buyers were not present occupants of the land at issue. Auto-Owners Ins. Co. v. Robinson, No. 3:05-CV-109, 2006 U.S. Dist. LEXIS 66551 (M.D. Ga. Sept. 6, 2006).

Pollution exclusion provisions ambiguous. —

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 pollution liability exclusion by exempting from it discharges that were quick, abrupt, and accidental; but the pollution liability exclusion endorsement broadened the scope of 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 Ga. App. LEXIS 296 (2009).

Franchise agreement did not cover county’s liability to power company for movement of power lines. —

Trial court properly found that a power company was entitled to compensation from a county for the taking of the company’s private property easements, including the costs of relocating the electrical power and distribution poles, when the county widened a road because a 1929 franchise agreement did not apply to situations where the power company was forced by the county to relocate power transmission lines and poles that the company originally erected on private property easements. Clayton County v. Ga. Power Co., 340 Ga. App. 60 , 796 S.E.2d 16 , 2017 Ga. App. LEXIS 5 (2017).

Exclusion in insurance policy for assault and battery. —

When 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 Ga. App. LEXIS 624 (2007), cert. denied, No. S07C1751, 2007 Ga. LEXIS 703 (Ga. Sept. 24, 2007).

Construction of automobile insurance policy exclusion provision. —

See Georgia Mut. Ins. Co. v. Kurtz, 206 Ga. App. 716 , 426 S.E.2d 248 , 1992 Ga. App. LEXIS 1754 (1992), cert. denied, No. S93C0488, 1993 Ga. LEXIS 88 (Ga. Jan. 15, 1993).

Construction of guaranty contract was matter of law for court. —

As no matter of fact was involved, the construction of a guaranty was a matter of law for the court, which found that the guaranty executed by a guarantor contained a very broad waiver clause which plainly and unambiguously waived any claims the guarantor might have had against the debtor and extended to claims arising in equity, or under contract, statute, or common law; the waiver obviously included a claim under O.C.G.A. § 10-7-41 , so the trial court erred by denying summary judgment to the debtor and other defendants, and erred as well in granting summary judgment in favor of the guarantor. Brookside Cmtys., LLC v. Lake Dow N. Corp., 268 Ga. App. 785 , 603 S.E.2d 31 , 2004 Ga. App. LEXIS 933 (2004).

Ambiguous provisions of policy must be construed most favorably toward coverage and against insurer. Allstate Ins. Co. v. Harris, 133 Ga. App. 567 , 211 S.E.2d 783 , 1974 Ga. App. LEXIS 1139 (1974).

Term “obscurely written word” is usually construed as referring to ambiguous words or provisions. Merrill Lynch, Pierce, Fenner & Smith v. Stidham, 506 F. Supp. 1182, 1981 U.S. Dist. LEXIS 11783 (M.D. Ga.), aff'd in part, vacated in part, 658 F.2d 1098, 1981 U.S. App. LEXIS 16846 (5th Cir. 1981).

Lease contracts are generally construed against lessor. Farm Supply Co. v. Cook, 116 Ga. App. 814 , 159 S.E.2d 128 , 1967 Ga. App. LEXIS 972 (1967).

If there is left uncertainty or even ambiguity in lease, it is lessee and not the 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 Ga. App. LEXIS 972 (1967).

Where parties stipulate contract is plain and definite, construction is matter for court. —

Where parties stipulate to court that contract involved is plain and definite, construction of the contract is matter of law to be submitted to court. Carsello v. Touchton, 231 Ga. 878 , 204 S.E.2d 589 , 1974 Ga. LEXIS 1267 (1974).

Whether instrument is deed or bill of sale, where unambiguous, is for court determination. —

It was error for court to submit to jury question as to whether instrument sued on was deed or bill of sale. Construction of paper, inasmuch as it was unambiguous, was question for court. Nelson v. Spence, 129 Ga. 35 , 58 S.E. 697 , 1907 Ga. LEXIS 298 (1907).

Claim to succession to co-owner’s right to repurchase stock. —

After applying the rules of construction, and looking at the extrinsic evidence, no ambiguity remained in a contract entered into between the two owners of a closely held corporation. The provision which provided that the “benefits” of the contract inured to the heirs and assigns of the parties did not entitle the heirs and assigns of one of the co-owners, who had entered into the agreement for purposes of enabling the owner to retire and whose stock was redeemed by the company, to exercise the “privilege” of repurchase given to that co-owner by another provision. Jordan v. Smith, 596 F. Supp. 1295, 1984 U.S. Dist. LEXIS 22958 (N.D. Ga. 1984).

Construction of shareholder’s agreement to sell stock. —

Because a shareholder agreement containing a proposal from one shareholder to sell shares to the other three was clear and unambiguous as: (1) there was nothing in the agreement allowing a shareholder to disregard a conditional offer; and (2) the agreement created an enforceable obligation requiring another shareholder to give written notice as to how that shareholder elected to proceed within 60 days of receiving the first shareholder’s offer, enforcement of the agreement was properly decided via summary judgment in favor of the selling shareholder. Simpson v. Pendergast, 290 Ga. App. 293 , 659 S.E.2d 716 , 2008 Ga. App. LEXIS 307 (2008), cert. denied, No. S08C1226, 2008 Ga. LEXIS 578 (Ga. June 16, 2008).

Indemnity provision between shareholder and corporate entity. —

Order granting summary judgment to an LLC was upheld, when, under the plain terms of an indemnity provision between the LLC and one of its shareholders, the shareholder was liable for costs associated with defending claims made by its agent against the LLC; but, the shareholder was not liable for costs associated with a suit over the payment of commissions, as such did not relate to the marketing and sales efforts covered by the indemnity clause and undertaken by the shareholder. SRG Consulting, Inc. v. Eagle Hosp. Physicians, LLC, 282 Ga. App. 842 , 640 S.E.2d 306 , 2006 Ga. App. LEXIS 1412 (2006), cert. denied, No. S07C0658, 2007 Ga. LEXIS 332 (Ga. Apr. 24, 2007).

A 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, 1994 Bankr. LEXIS 749 (Bankr. N.D. Ga. 1994).

Guaranty. —

In Georgia, the enforcement of unambiguous terms in a written agreement, such as a guaranty, presents an issue of law properly decided by summary judgment. Congress Fin. Corp. v. Commercial Technology, Inc., 910 F. Supp. 637, 1995 U.S. Dist. LEXIS 19691 (N.D. Ga. 1995).

In an action on a guaranty, because the plain and unambiguous terms of the guaranty and the guaranty’s addendum only obligated the guarantor to the lease obligations of the original tenant, the guarantor’s subsidiary, and not the obligations of a new tenant, the guarantor was properly absolved of any liability to the landlord for the obligations of that new tenant, entitling the guarantor to summary judgment on that issue. Highwoods Realty L.P. v. Cmty. Loans of Am., Inc., 288 Ga. App. 226 , 653 S.E.2d 807 , 2007 Ga. App. LEXIS 1173 (2007).

Trial court did not err by finding a guarantor personally liable on a promissory note because the trial court correctly found that the language of the promissory note, the unconditional guaranty, and the modification to the promissory note were unambiguous, and since the documents’ provisions were clear, the trial court’s proper role was to apply the terms as written; in the guaranty, the guarantor expressly waived all notices or defenses to which the guarantor could be entitled under the guaranty, to the extent permitted by law, and because the guarantor failed to assert any defense based upon an alleged incompetency to enter into a contract at the time the guarantor executed the guaranty, and because the guarantor failed to show that the guaranty’s broad waiver of defenses was prohibited by statute or public policy, the guarantor was bound thereby. Core LaVista, LLC v. Cumming, 308 Ga. App. 791 , 709 S.E.2d 336 , 2011 Ga. App. LEXIS 281 (2011).

Arbitration clause. — Based on the clear terms of an arbitration clause in a timber harvesting contract between a landowner and a timber harvesting contractor, the trial court did not err in compelling the contractor into arbitration as the contract had not expired, arbitration of a tort claim was not involved, but the language within the contract clearly covered the issues the landowner sought to arbitrate. Pickle v. Rayonier Forest Res., L.P., 282 Ga. App. 295 , 638 S.E.2d 344 , 2006 Ga. App. LEXIS 1264 (2006), cert. denied, No. S07C0435, 2007 Ga. LEXIS 218 (Ga. Feb. 26, 2007).

Upon admitting a parent to a nursing home, an adult child’s signature on an arbitration agreement did not bind the parent because the child was not the parent’s agent by virtue of being the child and there was no evidence that the parent had authorized the child to act for the parent as required by O.C.G.A. § 10-6-1 . McKean v. GGNSC Atlanta, LLC, 329 Ga. App. 507 , 765 S.E.2d 681 , 2014 Ga. App. LEXIS 725 (2014).

Appellate court reversed trial court’s decision that Arbitration Agreement was unconscionable, and affirmed trial court’s decision to reject aunt’s claims that Arbitration Agreement was not valid because it lacked consideration, that enforcement was precluded by federal Medicaid Act and implementing regulations, that FAA did not apply, and that Arbitration Agreement was not enforceable because it precluded vindication of nephew’s rights under Georgia’s Bill of Rights for Residents of Long-Term Care Facilities, O.C.G.A. § 31-8-100 et seq. CL SNF, LLC v. Fountain, 364 Ga. App. 371 , 875 S.E.2d 370 , 2022 Ga. App. LEXIS 314 (2022).

Exculpatory clause. —

Exculpatory clause in parties’ letter of agreement did not explicitly, prominently, clearly, and unambiguously bar breach of contract claims by medical care providers against a network administrator as those claims were outside the scope of the clause. Aetna Workers' Comp Access, LLC v. Coliseum Med. Ctr., 322 Ga. App. 641 , 746 S.E.2d 148 , 2013 Ga. App. LEXIS 582 (2013), cert. denied, No. S13C1640, 2013 Ga. LEXIS 930 (Ga. Nov. 4, 2013), cert. denied, No. S13C1643, 2013 Ga. LEXIS 934 (Ga. Nov. 4, 2013).

Whether offer accepted so as to create contract may be jury question. —

Although construction of written contract is for court, whether or not offer is accepted so as to become a contract may be question for jury. Gettier-Montanye, Inc. v. Davidson Granite Co., 75 Ga. App. 377 , 43 S.E.2d 716 , 1947 Ga. App. LEXIS 545 (1947).

Jury construction necessary where contract specifications apparently interpreted in various ways during performance. —

Where standard specifications were by stipulation made part of contract, and evidence shows that as applied to fact situations existing during course of construction various items contained in these stipulations were given various interpretations, not only as between plaintiff and defendant, but also as between certain of defendant’s engineers, evidence warranted instruction submitting construction of contract to jury. State Hwy. Dep't v. W.L. Cobb Constr. Co., 111 Ga. App. 822 , 143 S.E.2d 500 , 1965 Ga. App. LEXIS 1110 (1965).

Jury instruction on how to interpret contractual ambiguity harmless error. —

Unpublished decision: Although it was improper for a district court to instruct a jury on how to interpret contractual ambiguities without first having found an insurance contract to be ambiguous as a matter of law, the error was harmless because the court correctly defined the policy term “hidden from view,” which was the key issue in the case. Johnston v. Companion Prop. & Cas. Ins. Co., 318 Fed. Appx. 861, 2009 U.S. App. LEXIS 5294 (11th Cir. 2009).

Determining that figures represent money. —

See Hening v. Whaley, 18 Ga. App. 208 , 89 S.E. 166 , 1916 Ga. App. LEXIS 234 (1916).

Construction of exception “result clause” in double indemnity policy in connection with military service. —

See Mutual Life Ins. Co. v. Davis, 79 Ga. App. 336 , 53 S.E.2d 571 , 1949 Ga. App. LEXIS 649 (1949).

Where contract’s meaning not in issue, submission to jury without prior court construction immaterial. —

Where construction or meaning of contract is not in issue, it is immaterial that superior court submitted contract to jury without first placing construction or interpretation upon the contract. Shahan v. AT & T, 72 Ga. App. 749 , 35 S.E.2d 5 , 1945 Ga. App. LEXIS 689 (1945).

No new trial where court submits contract construction to jury and jury properly construes contract. —

While court has duty to construe written contracts, new trial will not be granted for failure to discharge this duty if contract is submitted to jury and properly construed by the jury, especially when, if contract had been properly construed by court, construction would have been adverse to plaintiff in error and result would have been the same as reached by the jury in the jury’s verdict. Main v. Simmons, 2 Ga. App. 821 , 59 S.E. 85 , 1907 Ga. App. LEXIS 527 (1907); Lenox Drug Co. v. New England Jewelry Co., 16 Ga. App. 476 , 85 S.E. 681 , 1915 Ga. App. LEXIS 90 (1915); South Ga. Trust Co. v. Neal, 174 Ga. 24 , 161 S.E. 815 , 1931 Ga. LEXIS 4 (1931).

Since the question of agency vel non rests upon a written document and inferences deduced therefrom, the issue presented is a question of law for the trial court, since construction of written contracts is exclusively for the judge. McMullan v. Georgia Girl Fashions, Inc., 180 Ga. App. 228 , 348 S.E.2d 748 , 1986 Ga. App. LEXIS 2093 (1986).

Employment contracts. —

It was undisputed that an employment contract provided that the agreement would be terminated “[o]ne year from the date set forth in this Agreement [August 1, 1979].” Since this provision was clear and unambiguous, the trial court did not err in finding that the employee’s employment had terminated by the terms of the contract, notwithstanding continued payments to the employee as “fees for professional services.” Medical Oncology Hematology Group v. Goldklang, 183 Ga. App. 788 , 360 S.E.2d 41 , 1987 Ga. App. LEXIS 2096 (1987).

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 Ga. App. LEXIS 687 (2006), cert. denied, No. S06C1928, 2006 Ga. LEXIS 722 (Ga. Sept. 18, 2006).

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 Ga. App. LEXIS 773 (2007), cert. denied, No. S07C1815, 2007 Ga. LEXIS 761 (Ga. Oct. 9, 2007).

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 Ga. App. LEXIS 508 (2016).

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 Ga. App. LEXIS 508 (2016).

Divorce settlement agreement. — When parties in divorce action enter into settlement agreement which is subsequently incorporated into divorce decree, meaning and effect thereof should be determined in accordance with usual rules for construction of contracts. Hortman v. Childress, 162 Ga. App. 536 , 292 S.E.2d 200 , 1982 Ga. App. LEXIS 2212 (1982).

Ex-wife was not responsible for paying a portion of past due tax liabilities resulting from the ex-husband’s entry into a voluntary disclosure program because the term “audit” in the parties’ settlement agreement did not include any audits that the ex-husband performed based on the ex-husband’s voluntary entry into an amnesty program as the type of audit contemplated under the tax provision of the settlement agreement was not an audit voluntarily initiated by one of the parties, but one that would be defended against - an audit necessarily initiated by a third party, such as an IRS audit in the traditional sense. Dean v. Dean, 361 Ga. App. 698 , 865 S.E.2d 292 , 2021 Ga. App. LEXIS 537 (2021).

Adjudication by summary judgment held improper. —

Summary judgment was inappropriate in a breach of fiduciary duty action which centered around a verbal settlement agreement since material fact issues remained as to whether: (1) a company’s offer to buy the minority shareholders’ stock required a written purchase agreement; (2) the parties agreed to all material terms; and (3) a note signed by one of the minority shareholders had been cancelled. McKenna v. Capital Res. Partners, IV, L.P., 286 Ga. App. 828 , 650 S.E.2d 580 , 2007 Ga. App. LEXIS 710 (2007), cert. denied, No. S07C1849, 2007 Ga. LEXIS 752 (Ga. Oct. 9, 2007), cert. denied, No. S07C1847, 2007 Ga. LEXIS 763 (Ga. Oct. 9, 2007).

Public contracts. —

Trial court did not err when the court denied the motion by the Georgia Department of Transportation (DOT) for a directed verdict on the DOT’s claim that a general contractor failed to follow procedures outlined in a contract the contractor was awarded for construction of an interchange, and asked a jury to determine whether the DOT breached the parties’ contract when the DOT refused to pay a claim the contractor submitted for reimbursement of costs the contractor incurred to restore a lake. DOT v. Hardin-Sunbelt, 266 Ga. App. 139 , 596 S.E.2d 397 , 2004 Ga. App. LEXIS 167 (2004), cert. denied, No. S04C1234, 2004 Ga. LEXIS 566 (Ga. June 28, 2004).

Amendments to pleadings did not negate application of contract. —

In a wrongful death and breach of contract action wherein the plaintiff did not prevail, the trial court erred by awarding the plaintiff attorney fees under an aircraft purchase agreement (APA) because the defendant was the prevailing party and under the fee-shifting clause of the agreement, the prevailing party was entitled to an award of attorney fees and plaintiff’s amendments to the complaint to remove references relying on the APA for liability did not alter that the APA governed the parties’ transaction. Eagle Jets, LLC v. Atlanta Jet, Inc., 321 Ga. App. 386 , 740 S.E.2d 439 , 2013 Ga. App. LEXIS 321 (2013).

General Consideration

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 Ga. LEXIS 707 (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), No. 17-20095, 2017 Bankr. LEXIS 1501 (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 Ga. LEXIS 269 (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 Ga. App. LEXIS 1848 (1975); Merrill Lynch, Pierce, Fenner & Smith v. Stidham, 506 F. Supp. 1182, 1981 U.S. Dist. LEXIS 11783 (M.D. Ga.), aff'd in part, vacated in part, 658 F.2d 1098, 1981 U.S. App. LEXIS 16846 (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., 491 Fed. Appx. 90, 2012 U.S. App. LEXIS 20502 (11th Cir. 2012).

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 Ga. App. LEXIS 619 (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 Ga. App. LEXIS 345 (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 Ga. App. LEXIS 1848 (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 Ga. App. LEXIS 742 (2006), cert. denied, No. S06C2020, 2006 Ga. LEXIS 796 (Ga. Oct. 2, 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 Ga. App. LEXIS 215 (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 Ga. App. LEXIS 773 (2007), cert. denied, No. S07C1815, 2007 Ga. LEXIS 761 (Ga. Oct. 9, 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 Ga. App. LEXIS 225 (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 Ga. App. LEXIS 361 (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., 660 F. Supp. 2d 1351, 2009 U.S. Dist. LEXIS 89467 (N.D. Ga. 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 Ga. App. LEXIS 150 (2014), cert. denied, No. S14C1001, 2014 Ga. LEXIS 513 (Ga. June 16, 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, 1965 U.S. App. LEXIS 4118 (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 Ga. LEXIS 549 (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 Ga. LEXIS 644 (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 Ga. App. LEXIS 536 (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 Ga. App. LEXIS 1038 (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 Ga. App. LEXIS 696 (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) and 13-2-3 supported that interpretation of the agreement. Crosby v. Lebert, 285 Ga. 297 , 676 S.E.2d 192 , 2009 Ga. LEXIS 159 (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 Ga. LEXIS 1097 (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 Ga. App. LEXIS 1953 (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 Ga. LEXIS 1419 (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 Ga. App. LEXIS 2642 (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., 596 Fed. Appx. 834, 2015 U.S. App. LEXIS 91 (11th Cir. 2015).

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 Ga. App. LEXIS 1002 (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 Ga. App. LEXIS 1255 (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 Ga. LEXIS 1228 (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 Ga. App. LEXIS 875 (2004), cert. denied, No. S04C1871, 2004 Ga. LEXIS 866 (Ga. Sept. 27, 2004), cert. denied, No. S04C1855, 2004 Ga. LEXIS 870 (Ga. Sept. 27, 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 Ga. App. LEXIS 1069 (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 Ga. App. LEXIS 2102 (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 Ga. App. LEXIS 370 (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 Ga. App. LEXIS 603 (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 Ga. App. LEXIS 1072 (2012), overruled in part, Artson, LLC v. Hudson, 322 Ga. App. 859 , 747 S.E.2d 68 , 2013 Ga. App. LEXIS 636 (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 and 13-2-2 . Ali v. Aarabi, 264 Ga. App. 64 , 589 S.E.2d 827 , 2003 Ga. App. LEXIS 1298 (2003), cert. denied, No. S04C0518, 2004 Ga. LEXIS 223 (Ga. Mar. 1, 2004).

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 Ga. App. LEXIS 1886 (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, 1982 U.S. Dist. LEXIS 16204 (S.D. Ga. 1982), aff'd, 704 F.2d 585, 1983 U.S. App. LEXIS 28357 (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 Ga. App. LEXIS 858 (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 Ga. App. LEXIS 300 (2008), cert. denied, No. S08C1224, 2008 Ga. LEXIS 668 (Ga. Sept. 8, 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 Ga. LEXIS 1097 (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 Ga. LEXIS 329 (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 Ga. App. LEXIS 2557 (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 Ga. App. LEXIS 752 (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, 1982 U.S. Dist. LEXIS 10282 (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 Ga. App. LEXIS 619 (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 Ga. App. LEXIS 1566 (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 Ga. App. LEXIS 668 (2012), cert. denied, No. S12C2037, 2013 Ga. LEXIS 103 (Ga. Jan. 22, 2013), overruled in part, Wang v. Liu, 292 Ga. 568 , 740 S.E.2d 136 , 2013 Ga. LEXIS 254 (2013).

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 Ga. App. LEXIS 603 (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 Ga. App. LEXIS 237 (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 Ga. App. LEXIS 827 (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 Ga. App. LEXIS 319 (2018), aff'd, 307 Ga. 330 , 834 S.E.2d 808 , 2019 Ga. LEXIS 706 (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 Ga. App. LEXIS 1492 (1998).

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 Ga. LEXIS 538 (1935); In re Estate of Sims, 259 Ga. App. 786 , 578 S.E.2d 498 , 2003 Ga. App. LEXIS 247 (2003).

Cardinal rule of construction is ascertainment and effectuation of intent. McVay v. Anderson, 221 Ga. 381 , 144 S.E.2d 741 , 1965 Ga. LEXIS 470 (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 Ga. App. LEXIS 269 (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 , 1939 Ga. App. LEXIS 396, rev'd, 189 Ga. 490 , 6 S.E.2d 570 , 1939 Ga. LEXIS 733 (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 Ga. App. LEXIS 1191 (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 Ga. App. LEXIS 213 (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 Ga. App. LEXIS 654 (2013), cert. denied, No. S13C1732, 2014 Ga. LEXIS 161 (Ga. Feb. 24, 2014), cert. denied, No. S13C1718, 2014 Ga. LEXIS 163 (Ga. Feb. 24, 2014).

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 Ga. LEXIS 344 (1945); Morgan Guar. Trust Co. v. Atlanta Nat'l Real Estate Trust, 149 Ga. App. 118 , 253 S.E.2d 774 , 1979 Ga. App. LEXIS 1748 (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, 723 Fed. Appx. 797, 2018 U.S. App. LEXIS 2022 (11th Cir. 2018).

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 Ga. App. LEXIS 526 (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 Ga. App. LEXIS 1191 (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 Ga. App. LEXIS 1774 (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 Ga. App. LEXIS 247 (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., No. 1:06-CV-03048-JEC, 2008 U.S. Dist. LEXIS 55222 (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 Ga. App. LEXIS 337 (2008).

Intent and effect of re-presentment of identical arbitration agreement. —

Hospital’s conduct in re-presenting an identical arbitration agreement in the admissions form was behavior fundamentally inconsistent with continued viability of the earlier identical arbitration agreement as each new presentation of the agreement constituted a new offer that was inconsistent with the contract being in force. Emory Healthcare, Inc. v. Farrell, 359 Ga. App. 621 , 859 S.E.2d 576 , 2021 Ga. App. LEXIS 252 (2021).

Although May 21, 2018 arbitration agreement language in admissions forms did not require it to do so, the hospital presented the patient with a new (albeit identical) arbitration agreement in the August 6, 2018 admissions forms and, therefore, abandoned the previous one; by electing not to sign the new arbitration agreement, the patient acquiesced in the hospital’s abandonment of the earlier agreement and there was no agreement to arbitrate. Emory Healthcare, Inc. v. Farrell, 359 Ga. App. 621 , 859 S.E.2d 576 , 2021 Ga. App. LEXIS 252 (2021).

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 Ga. App. LEXIS 793 (2013), cert. denied, No. S14C0198, 2014 Ga. LEXIS 146 (Ga. Feb. 24, 2014).

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 Ga. App. LEXIS 508 (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 Ga. App. LEXIS 508 (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 Ga. App. LEXIS 1306 (1991), cert. denied, No. S92C0019, 1991 Ga. LEXIS 844 (Ga. Oct. 18, 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 Ga. App. LEXIS 916 (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 Ga. App. LEXIS 165 (2002), cert. denied, No. S02C1110, 2002 Ga. LEXIS 563 (Ga. June 21, 2002).

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 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 Ga. LEXIS 344 (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 Ga. App. LEXIS 159 (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, No. 04-54126-JDW, 2005 Bankr. LEXIS 3139 (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 Ga. App. LEXIS 1626 (2004), cert. denied, No. S05C0901, 2005 Ga. LEXIS 393 (Ga. May 23, 2005).

After applying the rules of contract construction under O.C.G.A. §§ 13-2-2 and 13-2-3 , 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 Ga. App. LEXIS 30 (2007), cert. denied, No. S07C0804, 2007 Ga. LEXIS 312 (Ga. Apr. 24, 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, 2009 Bankr. LEXIS 3700 (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 Ga. LEXIS 827 (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 Ga. App. LEXIS 116 (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 Ga. App. LEXIS 936 (2004), cert. denied, No. S04C1926, 2004 Ga. LEXIS 903 (Ga. Oct. 12, 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 Ga. App. LEXIS 1041 (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 Ga. App. LEXIS 579 (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 and 13-2-2(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 Ga. App. LEXIS 280 (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 Ga. App. LEXIS 380 (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 Ga. App. LEXIS 140 (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 Ga. App. LEXIS 829 (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 Ga. App. LEXIS 919 (2013), cert. denied, No. S14C0467, 2014 Ga. LEXIS 380 (Ga. May 5, 2014).

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 Ga. App. LEXIS 258 (1998), cert. denied, No. S98C1151, 1998 Ga. LEXIS 781 (Ga. Sept. 8, 1998).

Unpublished decision: 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, 270 Fed. Appx. 940, 2008 U.S. App. LEXIS 6770 (11th Cir. 2008).

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, 1971 U.S. App. LEXIS 6402 (5th Cir. 1971), cert. denied, 407 U.S. 916, 92 S. Ct. 2440 , 32 L. Ed. 2 d 691, 1972 U.S. LEXIS 2290 (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 Ga. LEXIS 534 (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 Ga. LEXIS 256 (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 Ga. App. LEXIS 2335 (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 Ga. App. LEXIS 1664 (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 Ga. LEXIS 658 (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 Ga. App. LEXIS 1342 (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 Ga. App. LEXIS 1717 (1975); Archer v. Carson, 213 Ga. App. 161 , 444 S.E.2d 82 , 1994 Ga. App. LEXIS 485 (1994), cert. denied, No. S94C1343, 1994 Ga. LEXIS 947 (Ga. Sept. 9, 1994).

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 Ga. App. LEXIS 2193 (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 Ga. App. LEXIS 546 (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 Ga. App. LEXIS 624 (2007), cert. denied, No. S07C1751, 2007 Ga. LEXIS 703 (Ga. Sept. 24, 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 Ga. App. LEXIS 296 (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 Ga. App. LEXIS 2296 (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, 1988 U.S. Dist. LEXIS 4913 (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 Ga. App. LEXIS 1625 (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 Ga. App. LEXIS 598 (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 Ga. App. LEXIS 818 (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 Ga. App. LEXIS 408 (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 Ga. App. LEXIS 2520 (1978); St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 1999 U.S. App. LEXIS 32875 (11th Cir. 1999); Maiz v. Virani, 253 F.3d 641, 2001 U.S. App. LEXIS 11910 (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 Ga. App. LEXIS 1416, 1971 Ga. App. LEXIS 885 (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 Ga. App. LEXIS 665 (2016), cert. denied, No. S17C0855, 2017 Ga. LEXIS 668 (Ga. Aug. 14, 2017).

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 Ga. App. LEXIS 176 (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 Ga. App. LEXIS 980 (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 Ga. App. LEXIS 2139 (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 Ga. App. LEXIS 223 (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 Ga. App. LEXIS 222 (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 Ga. LEXIS 365 (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, 1990 U.S. Dist. LEXIS 18853 (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 Ga. LEXIS 145 (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, 1990 U.S. Dist. LEXIS 18853 (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 Ga. App. LEXIS 889 (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 Ga. App. LEXIS 662 (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 Ga. App. LEXIS 677 (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 Ga. App. LEXIS 251 (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 Ga. App. LEXIS 677 (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 Ga. LEXIS 49 (1933); Early v. Kent, 215 Ga. 49 , 108 S.E.2d 708 , 1959 Ga. LEXIS 387 (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 Ga. LEXIS 365 (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, 1975 U.S. Dist. LEXIS 16053 (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 Ga. App. LEXIS 1190 (2005), aff'd, 281 Ga. 50 , 635 S.E.2d 758 , 2006 Ga. LEXIS 648 (2006).

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 Ga. App. LEXIS 2426 (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 Ga. LEXIS 1078 (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 Ga. App. LEXIS 1519 (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 Ga. App. LEXIS 889 (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 Ga. App. LEXIS 2769 (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 Ga. App. LEXIS 294 (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 Ga. App. LEXIS 2303 (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 Ga. App. LEXIS 2915 (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 Ga. LEXIS 323 (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 Ga. App. LEXIS 752 (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 Ga. App. LEXIS 889 (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 Ga. App. LEXIS 677 (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 Ga. App. LEXIS 2721 (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 Ga. App. LEXIS 92 (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 Ga. App. LEXIS 2786 (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 Ga. LEXIS 387 (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, 1980 Bankr. LEXIS 4428 (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 Ga. App. LEXIS 684 (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, 1966 U.S. App. LEXIS 6868 (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 Ga. LEXIS 813 (1906); Bush v. Roberts, 4 Ga. App. 531 , 62 S.E. 92 , 1908 Ga. App. LEXIS 468 (1908); Gaulding v. Baker, 9 Ga. App. 578 , 71 S.E. 1018 , 1911 Ga. App. LEXIS 240 (1911); Coleman v. Barber, 137 Ga. 22 , 72 S.E. 399 , 1911 Ga. LEXIS 274 (1911); Jones v. Jones, 141 Ga. 727 , 82 S.E. 451 , 1914 Ga. LEXIS 128 (1914); Citizens Bank v. Southern Sec. & Fin. Co., 143 Ga. 101 , 84 S.E. 465 , 1915 Ga. LEXIS 307 (1915); McConnell v. Hulsey, 17 Ga. App. 387 , 87 S.E. 156 , 1915 Ga. App. LEXIS 443 (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 Ga. LEXIS 333 (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 Ga. App. LEXIS 920 (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, 1948 U.S. App. LEXIS 2609 (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 Ga. LEXIS 669 (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 Ga. App. LEXIS 1309 (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 Ga. App. LEXIS 1645 (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 Ga. LEXIS 344 (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 Ga. App. LEXIS 396 (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 Ga. App. LEXIS 1848 (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 Ga. App. LEXIS 1158 (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 Ga. LEXIS 365 (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 Ga. LEXIS 669 (1971).

Easement language clear as to measurement scheme. —

Language of the easement, which stated that the grocery store had to pay in proportion to the square footage owned by each of the owners of property as shown by an attached plat, was clear; therefore, the document relied upon by the grocery store denoting the acreage of the real property offering a different measurement scheme from that of the easement was insufficient to create a question of fact as to the calculation of the grocery store’s share of expenses. Alterman Properties LLC v. Sunshine Plaza Associates Ltd., 358 Ga. App. 698 , 856 S.E.2d 91 , 2021 Ga. App. LEXIS 116 (2021).

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 , 1900 Ga. LEXIS 99 (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 Ga. App. LEXIS 621 (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 Ga. LEXIS 1328 (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 Ga. App. LEXIS 251 (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 Ga. LEXIS 335 (1877); Bank of Abbeville v. Georgia Fertilizer & Oil Co., 154 Ga. 44 , 113 S.E. 146 , 1922 Ga. LEXIS 303 (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 Ga. LEXIS 333 (1911); Bank of Abbeville v. Georgia Fertilizer & Oil Co., 154 Ga. 44 , 113 S.E. 146 , 1922 Ga. LEXIS 303 (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 Ga. App. LEXIS 690 (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 Ga. LEXIS 422 (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 Ga. LEXIS 1328 (1975); Doyle v. Estes Heating & Air Conditioning, Inc., 173 Ga. App. 491 , 326 S.E.2d 846 , 1985 Ga. App. LEXIS 1592 (1985); Thomas v. Clark, 178 Ga. App. 823 , 344 S.E.2d 754 , 1986 Ga. App. LEXIS 1755 (1986); Pounds v. Hospital Auth., 191 Ga. App. 689 , 382 S.E.2d 602 , 1989 Ga. App. LEXIS 792 (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 Ga. App. LEXIS 982 (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 Ga. LEXIS 442 (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 Ga. App. LEXIS 2303 (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 Ga. App. LEXIS 1321 (2005), cert. denied, No. S06C0788, 2006 Ga. LEXIS 337 (Ga. Apr. 25, 2006).

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, 1975 U.S. Dist. LEXIS 16053 (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 Ga. App. LEXIS 1521 (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 Ga. LEXIS 1308, 1980 Ga. LEXIS 715 (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 Ga. App. LEXIS 2139 (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, 1980 Bankr. LEXIS 4428 (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 Ga. App. LEXIS 153 (1932); McKee v. Cartledge, 79 Ga. App. 629 , 54 S.E.2d 665 , 1949 Ga. App. LEXIS 708 (1949), overruled, Holmes v. Worthey, 159 Ga. App. 262 , 282 S.E.2d 919 , 1981 Ga. App. LEXIS 2574 (1981); Taylor v. Estes, 85 Ga. App. 716 , 70 S.E.2d 82 , 1952 Ga. App. LEXIS 818 (1952); Salvatori Corp. v. Rubin, 159 Ga. App. 369 , 283 S.E.2d 326 , 1981 Ga. App. LEXIS 2611 (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 Ga. App. LEXIS 662 (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 Ga. App. LEXIS 2738 (1981); Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033, 1981 U.S. Dist. LEXIS 9561 (S.D. Ga. 1981), aff'd, 667 F.2d 30, 1982 U.S. App. LEXIS 22211 (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 Ga. App. LEXIS 2102 (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 Ga. App. LEXIS 662 (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 Ga. App. LEXIS 642 (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 Ga. LEXIS 344 (1945).

Mere clerical error. —

In a taxpayer’s action against the Internal Revenue Service (IRS), under 28 U.S.C. § 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 and 13-2-2(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, 2005 U.S. App. LEXIS 16852 (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 Ga. App. LEXIS 2323 (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 Ga. LEXIS 466 (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 Ga. App. LEXIS 452 (2003), aff'd, 277 Ga. 734 , 594 S.E.2d 648 , 2004 Ga. LEXIS 269 (2004).

Unpublished decision: 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., 332 Fed. Appx. 557, 2009 U.S. App. LEXIS 11735 (11th Cir. 2009).

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, 2013 U.S. App. LEXIS 2132 (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, 2014 U.S. App. LEXIS 23720 (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 Ga. App. LEXIS 654 (2006), cert. denied, No. S06C1728, 2006 Ga. LEXIS 767 (Ga. Sept. 8, 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 Ga. App. LEXIS 77 (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 Ga. App. LEXIS 509 (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 Ga. App. LEXIS 2611 (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, 1980 Bankr. LEXIS 4428 (Bankr. N.D. Ga. 1980).

Although under O.C.G.A. §§ 13-2-2(1) and former 24-6-1 (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 Ga. LEXIS 552 (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 Ga. App. LEXIS 311 (1912).

Circumstances surrounding execution, ambiguities, and verbal portion of partly written contract may be shown by parol. Langenback v. Mays, 205 Ga. 706 , 54 S.E.2d 401 , 1949 Ga. LEXIS 413 (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 Ga. App. LEXIS 153 (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, 1980 Bankr. LEXIS 4428 (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 Ga. LEXIS 279 (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 Ga. App. LEXIS 827 (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 Ga. LEXIS 196 (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 Ga. LEXIS 970 (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 Ga. App. LEXIS 2316 (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, 1980 Bankr. LEXIS 4428 (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, 1980 Bankr. LEXIS 4428 (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 Ga. App. LEXIS 2002 (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 Ga. App. LEXIS 251 (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 Ga. App. LEXIS 3031 (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 Ga. App. LEXIS 889 (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 Ga. App. LEXIS 388 (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 Ga. App. LEXIS 370 (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 Ga. App. LEXIS 2647 (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 Ga. App. LEXIS 695 (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 Ga. LEXIS 600 (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 Ga. App. LEXIS 151 (1992).

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 Ga. App. LEXIS 1228 (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 Ga. App. LEXIS 2804 (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, 1980 Bankr. LEXIS 4428 (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, 2007 U.S. Dist. LEXIS 21690 (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 Ga. App. LEXIS 676 (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, 1940 U.S. Dist. LEXIS 2576 (D. Ga. 1940); Smith v. Standard Oil Co., 227 Ga. 268 , 180 S.E.2d 691 , 1971 Ga. LEXIS 669 (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 Ga. App. LEXIS 1309 (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 Ga. App. LEXIS 861 (2013), cert. denied, No. S14C0370, 2014 Ga. LEXIS 139 (Ga. Feb. 24, 2014), overruled in part, Franklin v. Pitts, 349 Ga. App. 544 , 826 S.E.2d 427 , 2019 Ga. App. LEXIS 201 (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 Ga. App. LEXIS 623 (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 Ga. App. LEXIS 2303 (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 Ga. LEXIS 337 (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 Ga. App. LEXIS 1276 (2007), cert. denied, No. S08C0618, 2008 Ga. LEXIS 286 (Ga. Mar. 10, 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 Ga. App. LEXIS 641 (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 Ga. App. LEXIS 2102 (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 Ga. LEXIS 644 (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 Ga. App. LEXIS 826 (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 Ga. App. LEXIS 2116 (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 Ga. LEXIS 6 (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 Ga. App. LEXIS 1439 (2000), cert. denied, No. S01C0517, 2001 Ga. LEXIS 494 (Ga. June 5, 2001), cert. denied, No. S01C0512, 2001 Ga. LEXIS 620 (Ga. July 16, 2001).

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 Ga. App. LEXIS 767 (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 Ga. App. LEXIS 672 (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 Ga. App. LEXIS 505 (1918), and see Read v. Gould, 139 Ga. 499 , 77 S.E. 642 , 1913 Ga. LEXIS 489 (1913); Adams v. Hatfield, 17 Ga. App. 680 , 87 S.E. 1099 , 1916 Ga. App. LEXIS 851 (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 Ga. App. LEXIS 564 (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 Ga. App. LEXIS 656 (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 Ga. App. LEXIS 752 (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 Ga. LEXIS 610 (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 Ga. App. LEXIS 884 (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 Ga. App. LEXIS 884 (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 Ga. App. LEXIS 2188 (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 Ga. LEXIS 280 (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 Ga. LEXIS 286 (1926); Stanaland v. Stephens, 78 Ga. App. 68 , 50 S.E.2d 258 , 1948 Ga. App. LEXIS 682 (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 Ga. LEXIS 183 (1879).

Parol evidence inadmissible to contradict deeds absolute on their face. Garrett v. Diamond, 144 Ga. App. 428 , 240 S.E.2d 912 , 1977 Ga. App. LEXIS 2721 (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 Ga. LEXIS 395 (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 Ga. LEXIS 817 (1900); Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 , 37 S.E. 485 , 1900 Ga. LEXIS 99 (1900); Union Cent. Life Ins. Co. v. Wynne, 123 Ga. 470 , 51 S.E. 389 , 1905 Ga. LEXIS 496 (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 Ga. LEXIS 397 (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 Ga. App. LEXIS 741 (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 Ga. App. LEXIS 954 (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 Ga. App. LEXIS 140 (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 Ga. App. LEXIS 2188 (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 Ga. App. LEXIS 1309 (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 Ga. App. LEXIS 386 (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 Ga. App. LEXIS 690 (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 Ga. LEXIS 145 (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.), No. 05-60451-MHM, 2006 Bankr. LEXIS 3245 (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 Ga. App. LEXIS 682 (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 Ga. App. LEXIS 1462 (2003), cert. denied, No. S04C0599, 2004 Ga. LEXIS 252 (Ga. Mar. 8, 2004).

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., No. 4:10-CV-111, 2012 U.S. Dist. LEXIS 128854 (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 Ga. App. LEXIS 399 (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) , former 24-3-1 (b), former 24-6-1, and former 24-6-2 (see now O.C.G.A. §§ 24-8-801 , 24-8-802 , 24-3-1 and 24-3-2 ); 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 Ga. App. LEXIS 1124 (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 Ga. App. LEXIS 392 (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 Ga. App. LEXIS 902 (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 Ga. App. LEXIS 576 (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 Ga. App. LEXIS 687 (2006), cert. denied, No. S06C1928, 2006 Ga. LEXIS 722 (Ga. Sept. 18, 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 Ga. App. LEXIS 284 (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 Ga. App. LEXIS 178 (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 Ga. App. LEXIS 227 (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 Ga. App. LEXIS 379 (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 Ga. App. LEXIS 71 (2013), cert. denied, No. S13C0928, 2013 Ga. LEXIS 521 (Ga. June 3, 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 Ga. App. LEXIS 1480 (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 Ga. App. LEXIS 273 (2011), cert. denied, No. S11C1289, 2011 Ga. LEXIS 978 (Ga. Nov. 30, 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 Ga. App. LEXIS 1103 (2007), cert. denied, No. S08C0437, 2008 Ga. LEXIS 316 (Ga. Mar. 31, 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, 356 Ga. App. 178 , 844 S.E.2d 852 , 2020 Ga. App. LEXIS 344 (2020), cert. denied, No. S20C1564, 2021 Ga. LEXIS 179 (Ga. Mar. 15, 2021).

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 Ga. App. LEXIS 718 (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 Ga. App. LEXIS 242 (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 Ga. App. LEXIS 3103 (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, 1967 U.S. Dist. LEXIS 8034 (M.D. Ga. 1967), aff'd, 390 F.2d 878, 1968 U.S. App. LEXIS 7921 (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, 2015 Bankr. LEXIS 1320 (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 , 1918 Ga. LEXIS 251 (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 Ga. App. LEXIS 1848 (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 Ga. App. LEXIS 883 (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 , 1918 Ga. LEXIS 251 (1918).

Intent of parties when ascertained will control technical terms. Carter v. Marble Prods., Inc., 171 Ga. 49 , 154 S.E. 891 , 1930 Ga. LEXIS 279 (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 Ga. App. LEXIS 2229 (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 Ga. App. LEXIS 733 (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., 642 Fed. Appx. 969, 2016 U.S. App. LEXIS 2350 (11th Cir. 2016).

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 U.S. App. LEXIS 3906 (11th Cir. 2019).

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 Ga. App. LEXIS 1760 (1991), cert. denied, No. S92C0470, 1992 Ga. LEXIS 272 (Ga. Mar. 19, 1992).

Construction of word “corroborate.” —

See Langford v. Royal Indem. Co., 208 Ga. App. 128 , 430 S.E.2d 98 , 1993 Ga. App. LEXIS 422 (1993), cert. dismissed, No. S93C1076, 1993 Ga. LEXIS 668 (Ga. June 21, 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 Ga. App. LEXIS 247 (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 Ga. App. LEXIS 45 (2006), cert. denied, No. S06C1071, 2006 Ga. LEXIS 515 (Ga. July 14, 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 Ga. App. LEXIS 273 (2015), cert. denied, No. S15C1289, 2015 Ga. LEXIS 583 (Ga. Sept. 8, 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 Ga. App. LEXIS 258 (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 Ga. App. LEXIS 361 (2008), cert. denied, No. S08C1411, 2008 Ga. LEXIS 701 (Ga. Sept. 8, 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 Ga. App. LEXIS 61 (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., 690 F. Supp. 2d 1342, 2010 U.S. Dist. LEXIS 11004 (M.D. Ga. 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 Ga. App. LEXIS 427 (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 Ga. App. LEXIS 399 (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, 1981 U.S. App. LEXIS 13277 (5th Cir. 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 Ga. App. LEXIS 272 (1943); American Motorists Ins. Co. v. Vermont, 115 Ga. App. 663 , 155 S.E.2d 675 , 1967 Ga. App. LEXIS 1201 (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 Ga. App. LEXIS 770 (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 Ga. App. LEXIS 554 (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, 1957 U.S. App. LEXIS 3265 (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 Ga. App. LEXIS 746 (1962).

Plain meaning of insurance policy obviously controls. Ranger Ins. Co. v. Culberson, 454 F.2d 857, 1971 U.S. App. LEXIS 6402 (5th Cir. 1971), cert. denied, 407 U.S. 916, 92 S. Ct. 2440 , 32 L. Ed. 2 d 691, 1972 U.S. LEXIS 2290 (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 Ga. App. LEXIS 144 (1995), cert. denied, No. S95C0948, 1995 Ga. LEXIS 604 (Ga. May 15, 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, 1969 U.S. Dist. LEXIS 9820 (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 Ga. App. LEXIS 874 (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 Ga. LEXIS 708 (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 , 1926 Ga. LEXIS 172 (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, 1992 U.S. App. LEXIS 4916 (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 Ga. App. LEXIS 2026 (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 Ga. App. LEXIS 3110 (1981).

Construction of word “about”. —

See Brawley v. United States, 96 U.S. 168, 24 L. Ed. 622 , 13 Ct. Cl. 521, 1877 U.S. LEXIS 1649 (1878); Bass Dry Goods Co. v. Granite City Mfg. Co., 113 Ga. 1142 , 39 S.E. 471 , 1901 Ga. LEXIS 513 (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, 1981 U.S. App. LEXIS 20938 (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, 1981 U.S. App. LEXIS 20938 (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 Ga. App. LEXIS 1196 (1997), cert. denied, No. S98C0102, 1998 Ga. LEXIS 197 (Ga. Jan. 30, 1998).

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 Ga. App. LEXIS 1103 (2009), cert. denied, No. S10C0672, 2010 Ga. LEXIS 451 (Ga. May 17, 2010).

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 Ga. App. LEXIS 229 (2013).

Rent abated until landlord delivers possession. —

Debtor tenant’s objection to landlord’s claim for unpaid rent was sustained because the terms of the lease were plain and unambiguous and, construing the contract in compliance with Georgia law, rent was abated until the landlord delivered possession of the property to the tenant, whereupon tenant was entitled to two months of free rent. In re Hobbs, No. 20-71946-WLH, 2021 Bankr. LEXIS 1703 (Bankr. N.D. Ga. June 24, 2021).

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 Ga. App. LEXIS 338 (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 Ga. App. LEXIS 664 (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 Ga. App. LEXIS 643 (2005), cert. denied, No. S05C1779, 2005 Ga. LEXIS 742 (Ga. Oct. 24, 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 Ga. App. LEXIS 643 (2005), cert. denied, No. S05C1779, 2005 Ga. LEXIS 742 (Ga. Oct. 24, 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 , 1934 Ga. LEXIS 132 (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 Ga. LEXIS 1287 (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 Ga. LEXIS 1355 (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 Ga. App. LEXIS 140 (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, 1988 Bankr. LEXIS 896 (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 Ga. LEXIS 574 (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 Ga. App. LEXIS 989 (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 Ga. LEXIS 171 (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 Ga. App. LEXIS 3048 (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, 1984 U.S. Dist. LEXIS 19065 (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 , 1988 Ga. App. LEXIS 1106 (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 Ga. App. LEXIS 1362 (2003), cert. denied, No. S04C0546, 2004 Ga. LEXIS 215 (Ga. Mar. 1, 2004).

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 Ga. App. LEXIS 1383 (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) 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 Ga. App. LEXIS 1025 (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 Ga. App. LEXIS 1157 (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 Ga. App. LEXIS 86 (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 , 1993 Ga. App. LEXIS 184, cert. vacated, 263 Ga. 441 , 435 S.E.2d 445 , 1993 Ga. LEXIS 690 (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., No. 5:04-CV-130, 2006 U.S. Dist. LEXIS 70931 (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 Ga. App. LEXIS 851 (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 Ga. App. LEXIS 1152 (2007), cert. denied, No. S08C0453, 2008 Ga. LEXIS 214 (Ga. Feb. 25, 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, 2007 U.S. Dist. LEXIS 21690 (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 Ga. App. LEXIS 1041 (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 Ga. App. LEXIS 629 (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 Ga. LEXIS 970 (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 Ga. App. LEXIS 442 (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 Ga. App. LEXIS 824 (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 Ga. App. LEXIS 718 (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 Ga. App. LEXIS 2715 (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 Ga. App. LEXIS 824 (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 Ga. LEXIS 644 (1981); Bemco Mattress Co. v. Southeast Bedding Co., 196 Ga. App. 509 , 396 S.E.2d 238 , 1990 Ga. App. LEXIS 978 (1990), cert. denied, No. S90C1477, 1990 Ga. LEXIS 581 (Ga. Sept. 4, 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 Ga. App. LEXIS 164 (2005), cert. denied, No. S05C1183, 2005 Ga. LEXIS 485 (Ga. June 30, 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 Ga. LEXIS 68 (1924); American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342 , 200 S.E. 150 , 1938 Ga. LEXIS 771 (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 Ga. App. LEXIS 721 (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 Ga. App. LEXIS 2624 (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 Ga. LEXIS 394 (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 Ga. LEXIS 68 (1924); American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342 , 200 S.E. 150 , 1938 Ga. LEXIS 771 (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 Ga. LEXIS 68 (1924); American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342 , 200 S.E. 150 , 1938 Ga. LEXIS 771 (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 Ga. LEXIS 771 (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 Ga. App. LEXIS 647 (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 Ga. App. LEXIS 824 (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 Ga. App. LEXIS 824 (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 Ga. LEXIS 68 (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 Ga. App. LEXIS 602 (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 Ga. App. LEXIS 2481 (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 Ga. App. LEXIS 618 (1930); Penn Mut. Life Ins. Co. v. Blount, 41 Ga. App. 581 , 153 S.E. 794 , 1930 Ga. App. LEXIS 1001 (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 Ga. LEXIS 396 (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 Ga. App. LEXIS 955 (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 Ga. App. LEXIS 721 (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 Ga. App. LEXIS 892 (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 Ga. App. LEXIS 2908 (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 Ga. App. LEXIS 955 (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 Ga. App. LEXIS 718 (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 Ga. App. LEXIS 602 (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 Ga. LEXIS 394 (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 Ga. App. LEXIS 2908 (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 Ga. App. LEXIS 824 (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 Ga. App. LEXIS 416 (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 Ga. App. LEXIS 892 (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 Ga. LEXIS 610 (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 Ga. LEXIS 68 (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 Ga. LEXIS 534 (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 Ga. App. LEXIS 280 (2006), aff'd, 282 Ga. 56 , 646 S.E.2d 206 , 2007 Ga. LEXIS 395 (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., 690 F. Supp. 2d 1342, 2010 U.S. Dist. LEXIS 11004 (M.D. Ga. 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 Ga. App. LEXIS 2332 (1983) (holding error harmless).

Preference for Upholding Contracts

Contract 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, 1972 U.S. Dist. LEXIS 14485 (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 Ga. App. LEXIS 531 (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 Ga. LEXIS 289 (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 Ga. App. LEXIS 571 (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 Ga. App. LEXIS 1785 (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 Ga. App. LEXIS 247 (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 Ga. LEXIS 1009 (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 Ga. App. LEXIS 1190 (2005), aff'd, 281 Ga. 50 , 635 S.E.2d 758 , 2006 Ga. LEXIS 648 (2006).

Unpublished decision: 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., 284 Fed. Appx. 636, 2008 U.S. App. LEXIS 13960 (11th Cir. 2008).

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 Ga. App. LEXIS 1916 (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 Ga. LEXIS 304 (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 Ga. App. LEXIS 213 (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 Ga. App. LEXIS 128 (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 Ga. App. LEXIS 2768 (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 Ga. App. LEXIS 535 (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.), No. 02-74350-JEM, No. 04-6443, 2005 Bankr. LEXIS 569 (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 Ga. LEXIS 344 (1883); Myers v. Phillip Carey Co., 17 Ga. App. 535 , 87 S.E. 825 , 1916 Ga. App. LEXIS 760 (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 , 1939 Ga. App. LEXIS 396, rev'd, 189 Ga. 490 , 6 S.E.2d 570 , 1939 Ga. LEXIS 733 (1939); Consolidated Freightways Corp. v. Williams, 139 Ga. App. 302 , 228 S.E.2d 230 , 1976 Ga. App. LEXIS 1774 (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 Ga. App. LEXIS 149 (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 Ga. App. LEXIS 495 (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 Ga. App. LEXIS 1909 (1979), rev'd, 245 Ga. 27 , 262 S.E.2d 794 , 1980 Ga. LEXIS 674 (1980), vacated, 153 Ga. App. 306 , 266 S.E.2d 808 , 1980 Ga. App. LEXIS 1782 (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 Ga. App. LEXIS 294 (1907); Potts v. Riddle, 5 Ga. App. 378 , 63 S.E. 253 , 1908 Ga. App. LEXIS 131 (1908); Luke v. Livingston, 9 Ga. App. 116 , 70 S.E. 596 , 1911 Ga. App. LEXIS 431 (1911); Palmer Brick Co. v. Woodward, 138 Ga. 289 , 75 S.E. 480 , 1912 Ga. LEXIS 285 (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 Ga. LEXIS 249 (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 Ga. App. LEXIS 2328 (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 Ga. LEXIS 336 (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 Ga. App. LEXIS 1255 (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 Ga. App. LEXIS 772 (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 Ga. LEXIS 497 (1898); Milledgeville Cotton Co. v. Cary, 9 Ga. App. 391 , 71 S.E. 503 , 1911 Ga. App. LEXIS 569 (1911); Haag v. Rogers, 9 Ga. App. 650 , 72 S.E. 46 , 1911 Ga. App. LEXIS 277 (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, 1984 U.S. App. LEXIS 16451 (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 Ga. App. LEXIS 986 (2013), cert. denied, No. S14C0579, 2014 Ga. LEXIS 523 (Ga. June 16, 2014).

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 Ga. App. LEXIS 751 (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 Ga. LEXIS 497 (1898); Small Co. v. Claxton, 1 Ga. App. 83 , 57 S.E. 977 , 1907 Ga. App. LEXIS 154 (1907); Candler Inv. Co. v. Cox, 4 Ga. App. 763 , 62 S.E. 479 , 1908 Ga. App. LEXIS 535 (1908); Dewey v. Denson, 31 Ga. App. 352 , 120 S.E. 805 , 1923 Ga. App. LEXIS 944 (1923); Bridges v. Home Guano Co., 33 Ga. App. 305 , 125 S.E. 872 , 1924 Ga. App. LEXIS 850 (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 Ga. App. LEXIS 1342 (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, 1977 U.S. App. LEXIS 11921 (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, 1966 U.S. App. LEXIS 4182 (5th Cir. 1966), cert. denied, 389 U.S. 823, 88 S. Ct. 58 , 19 L. Ed. 2 d 76, 1967 U.S. LEXIS 651 (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 Ga. LEXIS 474 (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 Ga. App. LEXIS 884 (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 Ga. App. LEXIS 1191 (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 Ga. LEXIS 171 (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, 1934 U.S. App. LEXIS 2691 (5th Cir. 1934), cert. denied, 294 U.S. 706, 55 S. Ct. 352 , 79 L. Ed. 1241 , 1935 U.S. LEXIS 123 (1935).

Ambiguity in letter should be construed most strongly against author. Stewart v. Finance Co., 49 Ga. App. 462 , 176 S.E. 73 , 1934 Ga. App. LEXIS 437 (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, 2002 Bankr. LEXIS 1670 (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 Ga. App. LEXIS 197 (2004), cert. denied, No. S04C1088, 2004 Ga. LEXIS 513 (Ga. June 7, 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 Ga. App. LEXIS 643 (2005), cert. denied, No. S05C1779, 2005 Ga. LEXIS 742 (Ga. Oct. 24, 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., 690 F. Supp. 2d 1342, 2010 U.S. Dist. LEXIS 11004 (M.D. Ga. 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 Ga. App. LEXIS 639 (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 Ga. LEXIS 161 (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 Ga. App. LEXIS 392 (2018), cert. denied, No. S18C1606, 2019 Ga. LEXIS 209 (Ga. Apr. 1, 2019).

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 Ga. App. LEXIS 561 (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 Ga. App. LEXIS 972 (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 Ga. App. LEXIS 2500 (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 Ga. App. LEXIS 323 (1990).

Language of note given by tenant for rent must be taken most strongly against tenant. McBurney v. McIntyre, 38 Ga. 261 , 1868 Ga. LEXIS 90 (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 Ga. App. LEXIS 916 (2000), cert. denied, No. S00C1954, 2001 Ga. LEXIS 12 (Ga. Jan. 5, 2001).

Insurance contracts to be strictly construed against insurer. Lee v. Fidelity & Cas. Co., 567 F.2d 1340, 1978 U.S. App. LEXIS 12546 (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 Ga. App. LEXIS 102 (1917), see also Massachusetts Benefit Life Ass'n v. Robinson, 104 Ga. 256 , 30 S.E. 918 , 1898 Ga. LEXIS 319 (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 Ga. App. LEXIS 644 (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 Ga. App. LEXIS 644 (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 Ga. App. LEXIS 644 (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 Ga. App. LEXIS 2414 (1986); Claussen v. Aetna Cas. & Sur. Co., 259 Ga. 333 , 380 S.E.2d 686 , 1989 Ga. LEXIS 287 (1989); Bituminous Cas. Corp. v. Advanced Adhesive Tech., Inc., 73 F.3d 335, 1996 U.S. App. LEXIS 836 (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 Ga. App. LEXIS 692 (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 Ga. App. LEXIS 126 (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 Ga. App. LEXIS 797 (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, 1955 U.S. App. LEXIS 3934 (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, 1957 U.S. App. LEXIS 3265 (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, 1966 U.S. App. LEXIS 4182 (5th Cir. 1966), cert. denied, 389 U.S. 823, 88 S. Ct. 58 , 19 L. Ed. 2 d 76, 1967 U.S. LEXIS 651 (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, 1969 U.S. Dist. LEXIS 13635 (D. Ga. 1969), aff'd, 424 F.2d 544, 1970 U.S. App. LEXIS 10237 (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, 1971 U.S. App. LEXIS 6402 (5th Cir. 1971), cert. denied, 407 U.S. 916, 92 S. Ct. 2440 , 32 L. Ed. 2 d 691, 1972 U.S. LEXIS 2290 (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., No. 5:04-CV-130, 2006 U.S. Dist. LEXIS 70931 (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, 1984 U.S. Dist. LEXIS 19971 (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 Ga. App. LEXIS 872 (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 Ga. LEXIS 505 (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 Ga. App. LEXIS 247 (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, 1988 Bankr. LEXIS 528 (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 Ga. LEXIS 470 (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 Ga. App. LEXIS 150 (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 Ga. App. LEXIS 850 (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 Ga. App. LEXIS 850 (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 Ga. App. LEXIS 850 (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 Ga. App. LEXIS 562 (2017), cert. denied, No. S18C0518, 2018 Ga. LEXIS 491 (Ga. Aug. 2, 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 Ga. App. LEXIS 1005 (2013), cert. denied, No. S14C0680, 2014 Ga. LEXIS 420 (Ga. May 19, 2014), cert. denied, No. S14C0660, 2014 Ga. LEXIS 416 (Ga. May 19, 2014).

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 Ga. App. LEXIS 2740 (1978); Fort Oglethorpe Assocs. II v. Hails Constr. Co., 196 Ga. App. 663 , 396 S.E.2d 585 , 1990 Ga. App. LEXIS 1011 (1990), cert. denied, No. S90C1669, 1990 Ga. LEXIS 552 (Ga. Oct. 4, 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 Ga. App. LEXIS 1827 (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 Ga. App. LEXIS 190 (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 Ga. App. LEXIS 1981 (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 Ga. App. LEXIS 1350 (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 Ga. App. LEXIS 1019 (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 Ga. App. LEXIS 694 (1969); Quinlan v. Bell, 189 Ga. App. 8 , 374 S.E.2d 823 , 1988 Ga. App. LEXIS 1286 (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 Ga. App. LEXIS 1981 (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 Ga. App. LEXIS 457 (1989); Patellis v. 100 Galleria Parkway Assocs., 214 Ga. App. 154 , 447 S.E.2d 113 , 1994 Ga. App. LEXIS 830 (1994), cert. denied, No. S94C1808, 1994 Ga. LEXIS 1191 (Ga. Dec. 1, 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 Ga. App. LEXIS 751 (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 Ga. LEXIS 344 (1909).

Subsequent and inconsistent contracts. — Existing contract was superseded and discharged whenever the parties subsequently enter upon a valid and inconsistent agreement completely covering the subject matter embraced by the original contract. Emory Healthcare, Inc. v. Farrell, 359 Ga. App. 621 , 859 S.E.2d 576 , 2021 Ga. App. LEXIS 252 (2021).

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 Ga. LEXIS 512 (1895); Caddick Milling Co. v. Moultrie Grocery Co., 22 Ga. App. 524 , 96 S.E. 583 , 1918 Ga. App. LEXIS 587 (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 Ga. App. LEXIS 267 (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 Ga. App. LEXIS 450 (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 Ga. LEXIS 739 (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 Ga. App. LEXIS 354 (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 Ga. App. LEXIS 534 (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 Ga. App. LEXIS 535 (2007), cert. denied, No. S07C1799, 2007 Ga. LEXIS 749 (Ga. Oct. 9, 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 Ga. App. LEXIS 281 (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 Ga. LEXIS 564 (1914); Lee v. Wilmington Sav. Bank, 31 Ga. App. 327 , 120 S.E. 689 , 1923 Ga. App. LEXIS 934 (1923), and see Jordan v. Rhodes, 24 Ga. 478 , 1858 Ga. LEXIS 237 (1858); Moody v. Griffin, 60 Ga. 459 , 1878 Ga. LEXIS 505 (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 Ga. App. LEXIS 2296 (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 Ga. LEXIS 86 (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 Ga. App. LEXIS 249 (1908); Augusta Factory v. Mente & Co., 132 Ga. 503 , 64 S.E. 553 , 1909 Ga. LEXIS 344 (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 Ga. App. LEXIS 725 (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 Ga. App. LEXIS 249 (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 Ga. App. LEXIS 24 (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. Rep. 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 Ga. LEXIS 739 (1904); Burkhalter v. Roach, 142 Ga. 344 , 82 S.E. 1059 , 1914 Ga. LEXIS 701 (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 Ga. LEXIS 391 (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 Ga. LEXIS 565 (1949); Scheer v. Doss, 211 Ga. 7 , 83 S.E.2d 612 , 1954 Ga. LEXIS 470 (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 Ga. LEXIS 78 (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 Ga. LEXIS 167 (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 Ga. App. LEXIS 534 (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 Ga. LEXIS 353 (1955); Bowden v. Mews Dev. Corp., 247 Ga. 546 , 277 S.E.2d 653 , 1981 Ga. LEXIS 792 (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 Ga. LEXIS 792 (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 , 1888 Ga. LEXIS 72 (1888); Alabama Constr. Co. v. Continental Car & Equip. Co., 131 Ga. 365 , 62 S.E. 160 , 1908 Ga. LEXIS 86 (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 Ga. App. LEXIS 359 (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 Ga. App. LEXIS 534 (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 Ga. LEXIS 395 (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 Ga. LEXIS 395 (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 Ga. LEXIS 78 (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 Ga. App. LEXIS 536 (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 Ga. App. LEXIS 2 (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 Ga. App. LEXIS 506 (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 Ga. App. LEXIS 1316 (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 Ga. LEXIS 337 (1900); Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 , 58 S.E. 200 , 1907 Ga. LEXIS 190 (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 Ga. App. LEXIS 829 (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 Ga. LEXIS 239 (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, 1982 U.S. Dist. LEXIS 10282 (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 Ga. App. LEXIS 1316 (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, 1982 U.S. Dist. LEXIS 10282 (S.D. Ga. 1982).

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 Ga. App. LEXIS 2120 (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 Ga. App. LEXIS 30 (2007), cert. denied, No. S07C0804, 2007 Ga. LEXIS 312 (Ga. Apr. 24, 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, 1988 U.S. Dist. LEXIS 4913 (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, 1981 U.S. App. LEXIS 18184 (5th Cir. 1981).

There was not a meeting of the minds that the purpose of the escrows was to provide a fund against which two defendants could recover on their insurance claims; no valid contract was formed and, accordingly, debtor husband’s interest in the escrowed funds was the property of the bankruptcy estate. Also, as to the debtor wife, there was no meeting of the minds regarding the purpose of the escrow, and, accordingly, the wife’s interest in the escrow was the property of the estate. Harris v. Nelson (In re Dunn), 436 Bankr. 744, 2010 Bankr. LEXIS 2901 (Bankr. M.D. Ga. 2010).

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 Ga. LEXIS 888 (1975).

Cardinal rule of construction, both at common law and under our code, is, that instruments containing conditions, limitations, 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 Ga. LEXIS 243 (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 Ga. App. LEXIS 474 (1929).

Every other rule is subservient to this one. Shorter v. Methvin, 52 Ga. 225 , 1874 Ga. LEXIS 264 (1874); Bridges v. Home Guano Co., 33 Ga. App. 305 , 125 S.E. 872 , 1924 Ga. App. LEXIS 850 (1924); Paul v. Paul, 235 Ga. 382 , 219 S.E.2d 736 , 1975 Ga. LEXIS 888 (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 Ga. LEXIS 450 (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, 1981 U.S. App. LEXIS 18184 (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 Ga. App. LEXIS 2045 (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 Ga. App. LEXIS 2640 (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 Ga. App. LEXIS 2045 (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 Ga. LEXIS 539 (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 , 1934 Ga. LEXIS 132 (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 Ga. LEXIS 708 (1942).

A contract of insurance is construed to carry out intent of parties. Morris v. Mutual Benefit Life Ins. Co., 258 F. Supp. 186, 1966 U.S. Dist. LEXIS 6710 (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, 1993 U.S. Dist. LEXIS 6869 (N.D. Ga. 1993), aff'd, 20 F.3d 1175, 1994 U.S. App. LEXIS 7244 (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 Ga. App. LEXIS 649 (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 parties. Brown v. Farkas, 195 Ga. 653 , 25 S.E.2d 411 , 1943 Ga. LEXIS 549 (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 Ga. LEXIS 159 (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 Ga. LEXIS 1412 (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 Ga. App. LEXIS 2881 (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 Ga. App. LEXIS 1508 (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 Ga. App. LEXIS 285 (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 Ga. App. LEXIS 598 (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 Ga. App. LEXIS 2520 (1978); St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 1999 U.S. App. LEXIS 32875 (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 Ga. App. LEXIS 623 (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 Ga. App. LEXIS 607 (1949), overruled, Etheridge v. Woodmen of World Life Ins. Soc., 114 Ga. App. 807 , 152 S.E.2d 773 , 1966 Ga. App. LEXIS 923, 1966 Ga. App. LEXIS 1259 (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 Ga. App. LEXIS 976 (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 Ga. App. LEXIS 976 (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 Ga. LEXIS 279 (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 Ga. App. LEXIS 1118 (1968).

Intention of parties is prevailing consideration in construction of contracts. Burden v. Thomas, 104 Ga. App. 300 , 121 S.E.2d 684 , 1961 Ga. App. LEXIS 662 (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 Ga. LEXIS 888 (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 Ga. App. LEXIS 762 (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 Ga. App. LEXIS 623 (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 Ga. LEXIS 279 (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 Ga. App. LEXIS 762 (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 Ga. LEXIS 322 (1891); Keith v. Chastain, 157 Ga. 1 , 121 S.E. 233 , 1923 Ga. LEXIS 353 (1923). See also Gilreath v. Garrett, 139 Ga. 688 , 77 S.E. 1127 , 1913 Ga. LEXIS 566 (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 Ga. App. LEXIS 794 (1925).

Intent to be ascertained and given effect whenever possible, even though instrument unskillfully prepared. —

However unskillfully 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 Ga. App. LEXIS 545 (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 Ga. App. LEXIS 240 (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 Ga. LEXIS 994 (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 Ga. App. LEXIS 314 (1912); McKibben v. Fourth Nat'l Bank, 32 Ga. App. 222 , 122 S.E. 891 , 1924 Ga. App. LEXIS 343 (1924), overruled, Timberlake Grocery Co. v. Cartwright, 146 Ga. App. 746 , 247 S.E.2d 567 , 1978 Ga. App. LEXIS 2549 (1978).

Though some of the provisions in a tax sharing agreement entered into by a corporate parent and the corporation’s subsidiary in connection with the parent’s filing of consolidated federal tax returns were ambiguous, the intention of the parties as discerned by a circuit court of appeals in accord with Georgia law was that the parent was to hold, as agent for the subsidiary, any tax refund which was solely attributable to losses incurred by the subsidiary; because that was the case with this tax refund, it was the property of the subsidiary and thus was not includable in the Chapter 11 bankruptcy estate of the parent. FDIC v. Zucker (In re NetBank, Inc.), 729 F.3d 1344, 2013 U.S. App. LEXIS 18774 (11th Cir. 2013), cert. denied, 574 U.S. 990, 135 S. Ct. 476 , 190 L. Ed. 2 d 357, 2014 U.S. LEXIS 7594 (2014).

Construction of employment contract. —

Trial court properly granted the employer’s cross-motion for summary judgment, concluding that the court was not required to pay severance to the former employee as a matter of law, as the employment contract plainly and unambiguously distinguished between the non-renewal of the contract at the end of a term and the termination of employment without cause, requiring severance pay only in the latter circumstance. Brazeal v. NewPoint Media Group, LLC, 331 Ga. App. 49 , 769 S.E.2d 763 , 2015 Ga. App. LEXIS 100 (2015).

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 Ga. App. LEXIS 508 (2016).

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 Ga. App. LEXIS 508 (2016).

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 Ga. App. LEXIS 116 (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 Ga. App. LEXIS 704, 1949 Ga. App. LEXIS 705 (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 Ga. LEXIS 275 (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 Ga. LEXIS 425 (1989), overruled, Duckworth v. State, 268 Ga. 566 , 492 S.E.2d 201 , 1997 Ga. LEXIS 713 (1997).

Intention of parties is determined from consideration of entire contract. Spooner v. Dykes, 174 Ga. 767 , 163 S.E. 889 , 1932 Ga. LEXIS 135 (1932); Romine, Inc. v. Savannah Steel Co., 117 Ga. App. 353 , 160 S.E.2d 659 , 1968 Ga. App. LEXIS 1084 (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 Ga. App. LEXIS 2905 (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 Ga. LEXIS 538 (1935).

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, No. 04-54126-JDW, 2005 Bankr. LEXIS 3139 (Bankr. M.D. Ga. Aug. 8, 2005).

Trial court judgment in favor of the appellee that a quit claim deed conveyed to the apellee the marital dwelling east of the dividing line because the plain language of the quitclaim deed clearly conveyed the interest in the subject property to the appellee and there was nothing in the trial court’s order to indicate otherwise and the appellant pointed to no evidence showing that the trial court failed to make the proper considerations. Mercer v. Mercer, 347 Ga. App. 563 , 820 S.E.2d 189 , 2018 Ga. App. LEXIS 562 (2018).

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 Ga. App. LEXIS 285 (1936).

Intent in 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 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 Ga. App. LEXIS 140 (2016).

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 Ga. App. LEXIS 1084 (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 Ga. App. LEXIS 623 (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 Ga. App. LEXIS 883 (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 Ga. App. LEXIS 1097 (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 Ga. App. LEXIS 1191 (1966).

To carry into effect intent of parties is object of rules of interpretation, and in doing this, court is to take whole of instrument together and to consider this with surrounding circumstances. Paul v. Paul, 235 Ga. 382 , 219 S.E.2d 736 , 1975 Ga. LEXIS 888 (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 Ga. App. LEXIS 526 (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 Ga. App. LEXIS 971 (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 Ga. App. LEXIS 340 (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 Ga. App. LEXIS 258 (1998), cert. denied, No. S98C1151, 1998 Ga. LEXIS 781 (Ga. Sept. 8, 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 Ga. App. LEXIS 587 (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 Ga. App. LEXIS 1084 (1968).

Prior representations and negotiations are merged into written contract. —

All pertinent 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 Ga. App. LEXIS 2045 (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 Ga. LEXIS 828 (1968).

Intent to give up rights in land. —

City and an apartment owner, in entering a 1954 agreement for the construction of a parking lot and sidewalk, never intended to create public property rights in the owner’s land; rather, the purpose of the agreement was to relieve traffic congestion along an abutting street. The agreement’s language showed that the owner had no intention of giving up control of the owner’s property; the land was not dedicated to the city or burdened with an easement, and the owner paid taxes on the entire area. Unified Gov't of Athens-Clarke Co. v. Stiles Apts., 295 Ga. 829 , 764 S.E.2d 403 , 2014 Ga. LEXIS 744 (2014).

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, 1971 U.S. App. LEXIS 6402 (5th Cir. 1971), cert. denied, 407 U.S. 916, 92 S. Ct. 2440 , 32 L. Ed. 2 d 691, 1972 U.S. LEXIS 2290 (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 Ga. App. LEXIS 770 (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, 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 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 Ga. App. LEXIS 2771 (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 Ga. App. LEXIS 794 (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 Ga. App. LEXIS 626 (2009).

Property settlement agreement precluded award of attorney fees to spouse. —

In a divorce action, the trial court erred by awarding $5,000 in attorney fees to the wife pursuant to O.C.G.A. § 19-6-2(a) because attorney fees under § 19-6-2(a) were precluded by the parties’ settlement agreement waiving alimony. Dovel v. Dovel, 352 Ga. App. 423 , 834 S.E.2d 918 , 2019 Ga. App. LEXIS 580 (2019).

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 Ga. App. LEXIS 532 (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 Ga. LEXIS 888 (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 Ga. App. LEXIS 1805 (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, 2007 U.S. Dist. LEXIS 21690 (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 Ga. App. LEXIS 964 (1923).

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 Ga. App. LEXIS 545 (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 Ga. LEXIS 608 (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 Ga. App. LEXIS 545 (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 Ga. App. LEXIS 794 (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 Ga. LEXIS 417 (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 , 1966 Ga. App. LEXIS 648, rev'd, 222 Ga. 672 , 151 S.E.2d 724 , 1966 Ga. LEXIS 595 (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 reasonable 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 Ga. App. LEXIS 2116 (1983).

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 and could support a claim for fraudulent inducement. Roca Properties, LLC v. Dance Hotlanta, Inc., 327 Ga. App. 700 , 761 S.E.2d 105 , 2014 Ga. App. LEXIS 408 (2014).

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, 1985 U.S. App. LEXIS 29427 (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 Ga. App. LEXIS 688 (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, 1994 Bankr. LEXIS 749 (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 Ga. App. LEXIS 3 (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 Ga. App. LEXIS 2274 (1985).

Section limits on rule that will to be construed under law effective at testator’s 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 Ga. LEXIS 267 (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 Ga. App. LEXIS 976 (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 Ga. App. LEXIS 338 (1941).

Construction of railroad right of way grant. —

See Atlantic C.L.R.R. v. Sweat, 177 Ga. 698 , 171 S.E. 123 , 1933 Ga. LEXIS 394 (1933).

County’s liability to power company for movement of power lines. —

Trial court properly found that a power company was entitled to compensation from a county for the taking of the company’s private property easements, including the costs of relocating the electrical power and distribution poles, when the county widened a road because a 1929 franchise agreement did not apply when the power company was forced by the county to relocate power transmission lines and poles that the company originally erected on private property easements. Clayton County v. Ga. Power Co., 340 Ga. App. 60 , 796 S.E.2d 16 , 2017 Ga. App. LEXIS 5 (2017).

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 Ga. App. LEXIS 1025 (2005).

Condominium association had no contractual duty to remove snow and ice. —

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 Ga. App. LEXIS 150 (2014), cert. denied, No. S14C1001, 2014 Ga. LEXIS 513 (Ga. June 16, 2014).

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, 1981 U.S. App. LEXIS 13277 (5th Cir. 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 Ga. App. LEXIS 727 (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 Ga. App. LEXIS 770 (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 Ga. App. LEXIS 644 (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 Ga. App. LEXIS 2334 (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 Ga. App. LEXIS 804 (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 Ga. App. LEXIS 1436 (2002), cert. denied, No. S03C0433, 2003 Ga. LEXIS 240 (Ga. Feb. 24, 2003).

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 Ga. App. LEXIS 858 (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 Ga. App. LEXIS 858 (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, 1995 U.S. Dist. LEXIS 21141 (S.D. Ga. 1995).

Insurance policy assault and battery endorsement. —

Trial court did not err in finding that, under the policy, the plaintiff’s claim for damages for false imprisonment arose out of an assault and battery and were thus subject to the $50,000 sublimit in the assault and battery endorsement because under the clear language of the endorsement, the plaintiff’s damages for false imprisonment and false arrest arose out of an alleged assault and battery and the assault and battery were the genesis of the plaintiff’s claims for false imprisonment and arrest. Zook v. Arch Specialty Ins. Co., 336 Ga. App. 669 , 784 S.E.2d 119 , 2016 Ga. App. LEXIS 192 (2016).

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 Ga. App. LEXIS 314 (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 Ga. App. LEXIS 1362 (2003), cert. denied, No. S04C0546, 2004 Ga. LEXIS 215 (Ga. Mar. 1, 2004).

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 Ga. App. LEXIS 380 (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 evidence, O.C.G.A. § 13-2-2 . Krogh v. Pargar, LLC, 277 Ga. App. 35 , 625 S.E.2d 435 , 2005 Ga. App. LEXIS 1321 (2005), cert. denied, No. S06C0788, 2006 Ga. LEXIS 337 (Ga. Apr. 25, 2006).

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 Ga. App. LEXIS 711 (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 Ga. App. LEXIS 630 (2006).

Purchase option in lease. —

In resolving a dispute regarding a residential lease with a purchase option, the trial court erred in requiring the tenant to deposit the full purchase price, with no immediate prospect of receiving title and no ability to offer a lender a security interest, because such an action would defeat the express intent of the parties as reflected in the option to purchase. Tela Invs., LLC v. Razavi, 351 Ga. App. 518 , 831 S.E.2d 175 , 2019 Ga. App. LEXIS 424 (2019), cert. denied, No. S19C1631, 2020 Ga. LEXIS 150 (Ga. Feb. 28, 2020).

Easement language clear as to measurement scheme. —

Language of the easement, which stated that the grocery store had to pay in proportion to the square footage owned by each of the owners of property as shown by an attached plat, was clear; therefore, the document relied upon by the grocery store denoting the acreage of the real property offering a different measurement scheme from that of the easement was insufficient to create a question of fact as to the calculation of the grocery store’s share of expenses. Alterman Properties LLC v. Sunshine Plaza Associates Ltd., 358 Ga. App. 698 , 856 S.E.2d 91 , 2021 Ga. App. LEXIS 116 (2021).

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 Ga. App. LEXIS 300 (2008), cert. denied, No. S08C1224, 2008 Ga. LEXIS 668 (Ga. Sept. 8, 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 Bankr. 918, 2003 Bankr. LEXIS 1616 (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 Ga. App. LEXIS 1312 (1998), cert. denied, No. S99C0186, 1999 Ga. LEXIS 142 (Ga. Feb. 5, 1999).

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 Ga. App. LEXIS 378 (2003), cert. denied, No. S03C1100, 2003 Ga. LEXIS 663 (Ga. July 14, 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 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 Ga. LEXIS 344 (2006).

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 Ga. LEXIS 658 (2015).

Ex-wife was not responsible for paying a portion of past due tax liabilities resulting from the ex-husband’s entry into a voluntary disclosure program because the term “audit” in the parties’ settlement agreement did not include any audits that the ex-husband performed based on the ex-husband’s voluntary entry into an amnesty program as the type of audit contemplated under the tax provision of the settlement agreement was not an audit voluntarily initiated by one of the parties, but one that would be defended against - an audit necessarily initiated by a third party, such as an IRS audit in the traditional sense. Dean v. Dean, 361 Ga. App. 698 , 865 S.E.2d 292 , 2021 Ga. App. LEXIS 537 (2021).

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 Ga. App. LEXIS 280 (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, 303 Ga. App. 623 , 694 S.E.2d 102 , 2010 Ga. App. LEXIS 250 (2010), cert. denied, No. S10C1370, 2010 Ga. LEXIS 861 (Ga. Nov. 1, 2010).

Supply agreement. —

Applying Georgia rules of contract interpretation, a court held that a supply agreement did not permit a manufacturer to pass the medical device tax imposed as part of the Patient Protection and Affordable Care Act (ACA) onto a distributor as a rise in the transfer price, as the sole means for raising the transfer price was set forth in the agreement, which was not ambiguous. Chemence Med. Prods. v. Medline Indus., 989 F. Supp. 2d 1349, 2013 U.S. Dist. LEXIS 171276 (N.D. Ga. 2013).

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 Ga. App. LEXIS 980 (2013).

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 Ga. App. LEXIS 579 (2015).

Appellate court could not ascertain attribution of damages. —

In a breach of contract action, the denial of a directed verdict to the appellant was reversed, which necessitated a new trial, because although the damages were apportioned as actual and consequential, the appellate court could not determine what damages were attributable to the breach of the non-solicitation or confidentiality provisions. Global Payments Direct v. Frontline Processing Corp., 360 Ga. App. 753 , 859 S.E.2d 909 , 2021 Ga. App. LEXIS 364 (2021).

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 Ga. App. LEXIS 665 (2016), cert. denied, No. S17C0855, 2017 Ga. LEXIS 668 (Ga. Aug. 14, 2017).