Olympic Const., Inc. v. Drywall Interiors, Inc.

• Citation: 180 Ga.App. 142,348 S.E.2d 688
• Decision Date: 02 September 1986
• Docket Number: No. 72391,72391
• Parties: OLYMPIC CONSTRUCTION, INC. et al. v. DRYWALL INTERIORS, INC.
• Court: United States Court of Appeals (Georgia)

Page 688

348 S.E.2d 688

180 Ga.App. 142

OLYMPIC CONSTRUCTION, INC. et al. v. DRYWALL INTERIORS, INC.

No. 72391.

Court of Appeals of Georgia.

Sept. 2, 1986.

Donald E. Loveless, Atlanta, for appellants.

Ira L. Rachelson, Donald J. Goodman, Stephen A. Friedman, Atlanta, for appellee.

CARLEY, Judge.

Appellant Olympic Construction, Inc. (Olympic) is a general contractor. It contracted to build 29 condominium units and then subcontracted with appellee Drywall Interiors, Inc. (Drywall) for the installation of drywall in those units. When the owner stopped making payments to Olympic, Olympic stopped paying Drywall. Seeking to recover for the work it had performed, Drywall brought the instant action against the following defendants: the owner; appellant Olympic; and appellant American Insurance Co. (American) in its capacity as Olympic's surety on a payment bond. The trial court granted summary judgment in favor of Drywall against appellants Olympic and American. Appellants Olympic and American appeal the grant of Drywall's motion for summary judgment and the denial of their own motions for summary judgment.

1. Appellants enumerate as error the trial court's interpretation of the following subcontract provision: "In any instance where Contractor remains unpaid by the Owner for Work performed by the Subcontractor, Contractor shall not be obliged to pay the Subcontractor for that work until Contractor may receive payment therefor from the Owner." (Emphasis supplied.) The trial court found that this provision could only reasonably be interpreted to mean that Olympic would not be obliged to pay Drywall until such time as, by reason of the satisfactory quality and workmanship of the subcontractor's work, Olympic was itself entitled to be paid by the owner. Appellants contend that the word "may" is mandatory, and that this provision establishes actual payment by the owner to the contractor as a condition precedent to payment to the subcontractor.

The word "may" is not always permissive. "May" has frequently been held to mean "must" or "shall." To determine what meaning the word "may" imparts, it must always be considered in connection with its context and subject matter. Bass v. Doughty, 5 Ga.App. 458(2), 63 S.E. 516 (1909); Wilson-Weesner-Wilkinson Co. v. Collier, 62 Ga.App. 457, 464(7), 8 S.E.2d 171 (1940). In the instant case, it is unclear exactly what meaning the parties intended "may" to have and, after applying all the rules of construction, the ambiguity remains. Accordingly, the trial court erred in ruling that the parties' intent under the contract was not a jury question. See generally Travelers Ins. Co. v. Blakey, 255 Ga. 699, 342 S.E.2d 308 (1986); Pro Metal Bldg. Systems v. T.E. Driskell Grading Co., 170 Ga.App. 127(1), 316 S.E.2d 574 (1984); Salvatori Corp. v. Rubin, 159 Ga.App. 369, 371(1), 283 S.E.2d 326 (1981).

2. Under the provision headed as "Payment" in the subcontract, there was preprinted language followed by typewritten language. Appellants contend that the trial court also erred in holding that the typewritten language in this provision was controlling over the entire printed section which immediately preceded it. Specifically, the trial court held that the printed language, which made payment to the subcontractor conditional on approval by the architect or owner, was superseded by the typed provisions, which governed the time for payment for material and provided that no retainage was to be withheld.

The typewritten parts of a contract generally take precedence over conflicting printed parts. Hodsdon v. Whitworth, 153 Ga.App. 783, 266 S.E.2d 561 (1980); Aetna Life, etc., Co. v. Charles S. Martin Distrib. Co., 120 Ga.App. 133(2), 169 S.E.2d 695 (1969). However, all terms of a contract are to be given full effect insofar as is practicable, Myers v. Philip Carey Co., 17 Ga.App. 535, 87 S.E. 825 (1916), and no portion of a contract shall be discarded if it can be avoided. Candler Investment Co. v. Cox, 4 Ga.App. 763, 62 S.E. 479 (1908). The typewritten language concerns the time of payment for material and states that retainage does not apply. It is not inconsistent with the preceding printed portion of the subcontract, except to the possible extent that the printed language provides for a different payment schedule and for retainage. There is nothing inconsistent between the...