Erquitt v. Solomon, FREEZ-ETTE

• Decision Date: 16 July 1975
• Docket Number: FREEZ-ETTE,Nos. 50865,50866,No. 1,s. 50865,1
• Citation: 135 Ga.App. 502,218 S.E.2d 172
• Parties: Carris ERQUITT v. J. W. SOLOMON et al.CORPORATION v. J. W. SOLOMON et al
• Court: Georgia Court of Appeals

Page 172

218 S.E.2d 172

135 Ga.App. 502

Carris ERQUITT v. J. W. SOLOMON et al.

FREEZ-ETTE CORPORATION v. J. W. SOLOMON et al.

Nos. 50865, 50866.

Court of Appeals of Georgia, Division No. 1.

July 16, 1975.

Richter & Birdsong, Horace E. Richter, Allen B. Keeble, LaGrange, for Carris Erquitt.

Westmoreland, Hall, McGee & Warner, John L. Westmoreland, Jr., P. Joseph McGee, Atlanta, Kendrick W. Mattox, Jr., LaGrange, for Freez-ette Corp.

Duncan & Thomasson, Thurman E. Duncan, Kendrick W. Mattox, Jr., LaGrange, P. Joseph McGee, Atlanta, Horace E. Richter, LaGrange, for appellees.

WEBB, Judge.

Joel W. Solomon and Moses Lebovitz brought a statutory ejectment suit to recover from Freez-ette Corporation and Carris Erquitt certain premises in Troup County. Plaintiffs and defendants each filed motions for summary judgment. The trial court sustained plaintiffs' motion, holding that as a matter of law they were entitled to recover possession from the defendants. The defendants appealed.

At issue is the construction of a lease agreement between Solomon's and Lebovitz's predecessor in title to the premises, and Freez-ette as lessee. Had the lease expired by its terms when Freez-ette and Erquitt, its sublessee, attempted to exercise an opinion for renewal, and could the trial court determine as a matter of law that the lease had so expired?

The lease agreement was made by Robert E. Williams as lessor (predecessor to Solomon and Lebovitz) and Freez-ette on October 24, 1962. Paragraph 1 reads: 'The term of this lease shall be 10 years, which term shall begin on the first day of January, 1963 and end on the last day of December, 1973.' (Emphasis supplied.)

Paragraph 2 of the lease provided for rental payments of $100 per month from January 1, 1963 to December 31, 1965, and $125 per month from January 1, 1966 to December 31, 1973.

Paragraph 3 reads: 'Lessor gives, grants and conveys to Lessee or its assigns an opinion for an additional 10 years term at a monthly rental of $125.00 per month, provided that Lessor is notified in writing not less than sixty (60) days before the expiration of the ten year term of their election to exercise said option.' (Emphasis supplied.)

No attempt was made by either Freezette or Erquitt to exercise the option to renew until April 12, 1973. Then Solomon and Lebovitz declined to execute the letter agreement tendered by Freez-ette to renew the lease, and thereafter called on Freez-ette and Erquitt for possession of the premises. Lessees contend that the trial court erred in its construction of the lease agreement, and the ambiguity in the lease agreement presented a factual issue requiring determination by a jury. Held:

The whole contract must be looked to in arriving at the construction of any part. Code § 20-704(4); Cotton States Mutual Ins. Co. v. Hutto, 115 Ga.App. 164, 166, 154 S.E.2d 375. Construction of ambiguous contracts is the duty of the court, and no jury question is raised unless after application of the pertinent rules of construction the ambiguity remains. Davis v. United American Life Ins. Co., 215 Ga. 521(2), 111 S.E.2d 488. 'It does not follow that merely because there are two possible interpretations which might be employed in construing a contract the matter automatically becomes a question for the jury. If that were true the court would rarely, if ever, construe a contract as Code § 20-701 declares its duty to be. The role and function of a court is higher than that of a mere...