Holcomb v. Word

• Decision Date: 20 October 1977
• Docket Number: No. 32491,32491
• Citation: 239 Ga. 847,238 S.E.2d 915
• Parties: Charles B. HOLCOMB v. William F. WORD.
• Court: Georgia Supreme Court

Page 915

238 S.E.2d 915

239 Ga. 847

Charles B. HOLCOMB v. William F. WORD.

No. 32491.

Supreme Court of Georgia.

Oct. 20, 1977.

Holcomb & McDuff, Frank D. Holcomb, Gregory S. Crone, Marietta, for appellant.

Schreeder, Wheeler & Flint, David H. Flint, Atlanta, for appellee.

MARSHALL, Justice.

Word, as buyer of a 181.67-acre tract of land, sued Holcomb, the holder of a deed to secure debt to which the land was subject, for specific performance requiring the release of a 40.68-acre tract of the land.

The controversy is over the meaning of the word "either" in the following portion of the release provision of the deed to secure debt: "No more than one-half (1/2) of the road frontage on either side of that said Vaughn Mill Road frontage running North and South through the center of the property can be released before all of the back property has been released on either side of the road. Any tract releases shall run from road front to back property line and be contiguous to future releases." (Emphasis supplied.)

The defendant contended that "either" can mean one or the other, or both, and that this ambiguity creates a jury issue. The trial judge disagreed, and granted the plaintiff's motion for judgment on the pleadings, from which judgment the defendant appeals. We affirm.

" '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.' 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 referee.' Farm Supply Co. of Albany v. Cook, 116 Ga.App. 814, 816, 159 S.E.2d 128." Warrior Constructors, Inc. v. E. C. Ernst Co., 127 Ga.App. 839, 840, 195 S.E.2d 261, 262 (1973). "The construction of the release provision of the security deed is a question of law for the court. Honea v. Gilbert, 236 Ga. 218, 223 S.E.2d 115 (1976)." Madison, Ltd. v. Price, 237 Ga. 904, 905, 230 S.E.2d 297, 299 (1976).

"The construction which will uphold a contract in whole or in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part." Code Ann. § 20-704(4) (Ga.L.1964, pp. 414, 415). The release clause contains provisions to the following effects: (1) that the appellee may select the property to be released; (2) that property selected by the appellee cannot result in remaining property's being denied access to a public street or road; (3) that all property releases must be contiguous to property previously released; (4) that any property released which has road frontage on Vaughn Mill Road may begin on either the east or west side of the road, and must begin at either the north or south corners; (5...