Eller & Heyward, Inc. v. Jackson

• Decision Date: 17 April 1968
• Docket Number: No. 43573,No. 2,43573,2
• Citation: 162 S.E.2d 238,117 Ga.App. 753
• Parties: ELLER & HEYWARD, INC. v. J. L. JACKSON
• Court: Georgia Court of Appeals

Page 238

162 S.E.2d 238

117 Ga.App. 753

ELLER & HEYWARD, INC. v. J. L. JACKSON.

No. 43573.

Court of Appeals of Georgia, Division No. 2.

April 17, 1968.

Rehearing Denied May 9, 1968.

Hatcher, Meyerson, Oxford & Irvin, Henry M. Hatcher, Jr., Atlanta, for appellant.

Greer & Murray, Richard G. Greer, Atlanta, for appellee.

Syllabus Opinion by the Court

HALL, Judge.

The plaintiff, a subcontractor, sued the general contractor for the unpaid balance of the amount allegedly due him under the subcontract. After a verdict and judgment for the plaintiff, the defendant appeals.

The subcontract provided: 'The subcontractor and the contractor agree that the materials to be furnished and work to be done by the subcontractor are furnish all labor, materials, and equipment necessary to install a five-ply twenty-year built up roof, according to plans and specifications. The subcontractor shall install all roofing and sheetmetal work, gutters and downspouts, all roof flashing, including all vents protruding through the roof deck, pitch pans, roof drains and gravel stops.'

There is no dispute that the subcontractor did not install gutters and downspouts. The subcontractor contends that the contract required him to install a roof according to the plans and specifications, and since these did not show gutters and downspouts that were not required by the contract. The contractor contends that by the plain language of the provision that the subcontractor shall install gutters and downspouts the contract unambiguously required that the subcontractor install them, even though they were not shown on the plans and specifications, and that this should be determined as a matter of law by the court.

'The true rule relative to the duty of the court to construe (a contract) is * * * 'Construction of ambiguous contracts is the duty of the court, and it is only after application thereto of the pertinent rules of construction, and they remain ambiguous, that extrinsic evidence is admissible to explain the ambiguity.' * * * although there is ambiguity in a contract it raises no jury question unless the ambiguity remains unresolved after application of applicable rules of construction.' Farm Supply Co. of Albany, Inc. v. Cook, 116 Ga.App. 814, 816, 159 S.E.2d 128, 130.

It appears that this case was tried on the theory that there was an issue of fact as to the meaning of the contract, and this issue was presented to the jury to be resolved by determining the intent of the...