The Texas Co. v. Blackmon-Scarbrough Inc. , 74 Ga. App. 183 ( 1946 )

The judge, presiding without the intervention of a jury, did not err in his construction of the lease contract between the parties, or in rendering a judgment in favor of the lessor.

DECIDED JUNE 27, 1946. REHEARING DENIED JULY 24, 30, 1946. The Texas Company (hereinafter referred to as "lessee") filed, against Blackmon-Scarbrough Inc. (hereinafter called "lessor"), a petition for a declaratory judgment construing a lease or rental contract under which the defendant, as lessor, had leased to The Texas Company, as lessee, a service station in Columbus, Georgia. The subject of the controversy between the parties is the construction of paragraph 2 of the lease contract, which reads as follows: "(2) Term. To have and to hold for the term of ten years from and after the first day of May, 1940, but subject to termination by lessee or lessor at the end of the fifth year upon ninety-days' written notice from lessee to lessor or from lessor to lessee; provided that, if either party exercises such right of termination, the party so doing shall pay to the other party the sum of $1500 prior to the termination date."

The lessee contends that the wording, "but subject to termination at the end of the fifth year by lessee or lessor upon ninety days written notice," means that the notice must have been given at least ninety days prior to the end of the fifth year in order to be effective. The evidence shows that the end of the fifth year of the lease was May 1, 1945, and that on April 25, 1945, the lessor wrote a letter to the lessee and stated therein, "We are hereby giving you 90 days written notice from May 1, 1945, and exercising our right to terminate this lease. Cashier's check for $1500 is enclosed herewith." The case was tried by the judge, without the intervention of a jury, and he held that the evidence disclosed that the lease contract was prepared by the lessee; and that ruling was not excepted to.

The lessor contends that paragraph 2 of the contract, properly construed, means that the notice could be given at the end of the fifth year of the lease or within a reasonable time thereafter. The lessor further contends that said paragraph of the lease contract is ambiguous and, since it was prepared by the lessee, it should be construed most strongly against that party. However, the lessee contends that the contract is not ambiguous, but, on the contrary, "that the plain, simple, natural construction of the contract required the lessor to give ninety days notice prior to the first day of May, 1945."

The court, after the introduction of evidence, held that under the proper construction of paragraph 2 of the contract, the lessor was not required to give the notice ninety days prior to May 1, 1945, but could give it at the end of the fifth year or within a reasonable time thereafter.

Both parties state that the controlling question before this court is whether the trial judge's construction of the lease contract was error. Did he properly construe the words, "at the end of the fifth year," as meaning "at or within a reasonable time after the end of the fifth year?" To be more precise, could the word "at," as so used, be properly construed as meaning "after?" "The word `at' is a term of considerable elasticity of meaning, and is somewhat indefinite. It is not a word of precise and accurate meaning, and it has been said that the connection furnishes the best definition. As used to fix a time, it does not necessarily mean eo instanti, or the identical time named, or even a fixed, definite moment. 5 C. J. 1422, 1423." Barnett v.Strain, 151 Ga. 553, 557 (107 S.E. 530). "The word `at' in this contract is equivalent in meaning to `after'. It was held, in Annan v. Baker, 49 N.H. 169, cited in American and English Encyclopedia of Law, vol. 1 (1st ed.) p. 893, note, that `At the end of one year,' means `at the expiration of one full and entire year,' and that `at' is equivalent in meaning to `after.' If the word `after' is substituted for `at' in the contract under review, there can be no doubt about the correctness of the construction given to it in the headnote. As the election could be made after the expiration of the time limited, of course a reasonable time was allowable for this purpose." Rogers v.Burr, 97 Ga. 10, 14 (25 S.E. 339). While the facts in theRogers case are not on "all fours" with those of the instant one, we see no material variance between them, and the decision there made is controlling here, since it has never been overruled.

It is true that counsel for the lessee have cited authorities holding that "at" means a precise date and should not be construed as meaning "after." The difference between authorities on this question tends to show that the contract in this case was ambiguous, and in our opinion it was ambiguous. That being true, the court properly construed the contract most strongly against the lessee, which prepared it. In deciding this question, we have carefully considered all the separate parts of the contract, the contract as a whole, the probable intention of the parties when they made the contract, and the various sections of our Code declaring the rules governing the construction of contracts.

In our opinion, the judgment of the court as amended, in favor of the lessor, was not error for any reason assigned.

Judgment affirmed. Gardner, J., concurs; Sutton, P. J.,concurs in the judgment; Felton, J., concurs specially; andMacIntyre and Parker, JJ., dissent.