Atlanta Baggage & Cab Co. v. Loftin, 34552

• Decision Date: 15 April 1953
• Docket Number: No. 34552,No. 2,34552,2
• Citation: 88 Ga.App. 98,76 S.E.2d 92
• Parties: ATLANTA BAGGAGE & CAB CO. v. LOFTIN
• Court: Georgia Court of Appeals

Page 92

76 S.E.2d 92

88 Ga.App. 98

ATLANTA BAGGAGE & CAB CO. v. LOFTIN.

No. 34552.

Court of Appeals of Georgia, Division No. 2.

April 15, 1953.

Rehearing Denied May 2, 1953.

Syllabus by the Court.

1. In the construction of contracts, provisions specially inserted by the parties are to take precedence over the printed provisions of the contract form. The construction of a contract is ordinarily a matter for the court; but, where there are ambiguities in the instrument, the meaning thereof becomes a matter for jury determination.

2. Where the court sustains a special demurrer to a designated item of damage on the ground that such item is not recoverable against the defendant, a charge to the jury on the measure of damages which includes the item to which such demurrer was sustained is error, the plaintiff not having excepted, and the ruling having become the law of the case.

3. The evidence, although conflicting, was sufficient to authorize the jury to find that the lessee had sustained damage in certain particulars proximately resulting from a breach of contract on the part of the lessor.

C. W. Loftin filed suit in the Civil Court of Fulton County against Atlanta Baggage and Cab Company, seeking damages for an alleged breach of a lease contract. The petition as amended alleged: that the plaintiff leased from the defendant certain ground-floor areas of the defendant's six-story building for restaurant purposes; that it was necessary in order to comply with city regulations to install certain ducts for ventilating purposes from the steam table, the duct to extend through the roof of the kitchen, which was one story in height, and from there to the top of the six-story building to which the kitchen was attached, in order to remove fumes; and that, by reason of the failure of the lessor to extend the duct as agreed, the lessee was forbidden by the city inspector to use this kitchen apparatus, and was therefore forced to cease business operations after a period of three months. Section 36 of the lease, a typed-in special provision, provides as follows: 'It is understood and agreed that a suitable duct will be installed extending from the kitchen portion of the premises leased herein to the roof level of the six story building known as 20 Houston Street, for the purpose of discharging odors and excessive heat from the kitchen. The lessee will pay the cost for the installation of the portion of the duct work inside the premises leased herein. The lessor will pay the cost of the remaining portion of the duct.' Section 13, a printed provision of the lease, states in part, 'Lessee agrees, at his own expense, to promptly comply with all requirements of any legally constituted public authority made necessary by reason of lessee's occupancy of said premises.'

Exceptions were preserved to the overruling of a general demurrer to the petition. The trial resulted in a verdict in favor of the plaintiff, and error is here assigned on the overruling of the general demurrer and of the motion for a new trial as amended.

Douglas, Evans & Cole, Atlanta, for plaintiff in error.

Irwin & Dyer, Osgood Williams, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. Code, § 20-704, subd. 7, provides as follows: 'When a contract is partly printed and partly written, the latter part is entitled to most consideration.' So construed, the lease, which provides that the lessor 'will pay the cost of the remaining portion of the duct' not 'inside the premises leased,' does not show on its face: (a) that the lessor was merely called upon to install the outside portion of the duct after it had been purchased by the lessee, or (b), in connection with the printed provision, that the lessee should have done this work because the same was demanded in compliance with a governmental order. If there was in fact an ambiguity in the lease as to the party upon whom the duty devolved of doing the outside construction work to eliminate kitchen fumes, then the court properly overruled the general demurrer on this ground and left the construction of the lease agreement to the jury. Swanson v. Mobley, 33 Ga.App. 791, 127 S.E. 806; Pidcock v. Nace, 15 Ga.App 794(3), 84 S.E. 226. There was no ambiguity as to the facts, that (a) the parties intended that a duct should be installed extending from the kitchen portion of the premises to the roof level of the adjoining six-story building, and (b) that the cost of the outside portion of this installation was to be borne by the defendant. However, the lease does not mention the details of construction of the duct, and no question is raised by the pleadings as to the manner or type of installation to be furnished, it being simply alleged that 'the lessee will pay the cost for the installation of the portion of the duct work inside the premises leased herein. The lessor will pay the cost of the remaining portion of the duct.' The trial court therefore properly overruled the general demurrer, stating in his opinion that 'the question of whether defendant was required to affirmatively construct the duct referred to in section 36 of the lease agreement must be determined in favor of the plaintiff.' The court also properly charged that, 'under the terms of the contract, the defendant was obligated to build the duct from the roof on up the side of the 6-story building known as No. 20 Houston Street.' These rulings did not dispose of an ambiguity in the contract as disclosed by the evidence in the case, more fully discussed in the third...