Hunter v. Georgia Intern. Corp.

Decision Date21 October 1977
Docket Number32626,Nos. 32625,s. 32625
Citation239 S.E.2d 337,240 Ga. 7
PartiesHugh C. HUNTER et al. v. GEORGIA INTERNATIONAL CORPORATION.
CourtGeorgia Supreme Court

Smith, Cohen, Ringel, Kohler & Martin, John A. Howard, Atlanta, for appellants.

Cofer, Beauchamp & Hawes, Timothy J. Sweeney, Atlanta, for appellee.

HALL, Justice.

Appellants sued to enjoin foreclosure on the deed to secure debt covering their 1100 acres of unimproved industrial-zoned realty, and for specific performance of the release provision in the deed. 1 By amendment, appellants requested damages for the alleged breach of this provision in the event equitable relief was denied. Case 32625 involves the denial of interlocutory relief, and 32626 involves the grant of summary judgment to defendant-appellee. Our resolution of the latter case disposes of the former.

Appellants borrowed $1,741,110 from appellee to buy the property in January 1973. The first annual principal and interest payment was made on time in January 1974. Troubles subsequently arose, and a modification agreement in January 1975 postponed one installment of principal. In December 1975, appellants demanded a release of some of the acreage, in accordance with the release provision of the deed. This demand was refused, and subsequent demands in January 1977 were also refused. Appellants' cause of action is based entirely on the assertion that these refusals were a breach of the agreement.

The release provision in this deed is substantially the same as that interpreted in Madison, Ltd. v. Price, 237 Ga. 904, 905, 230 S.E.2d 297 (1976). The instant deed provides:

"(a) The Grantee . . . agrees from time to time and at any time to release parcels of acreage contained in the property upon payment by the Purchaser of $2,400.00 per acre for each parcel released. . . . (c) Any payments for the acreage to be released shall be first applied as a principal payment on the next installment or installments to become due on the note. . . ."

The only significant difference between this provision and that in Madison is the phrase "from time to time and at any time." Contrary to appellants' assertion that this phrase distinguishes the case at hand from Madison, and that the phrase makes the provision ambiguous, we conclude that the phrase makes explicit what was implicit in the terms of the deed in Madison, and thus makes the provision more clear and certain.

Appellants offered Hunter's testimony to show appellants' interpretation of the agreement. He testified that the Hunter group wanted...

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