Rollins v. Gault, 58790

• Decision Date: 10 March 1980
• Docket Number: No. 58790,58790
• Parties: ROLLINS v. GAULT.
• Court: Georgia Court of Appeals

Page 560

266 S.E.2d 560

153 Ga.App. 781

ROLLINS v. GAULT.

No. 58790.

Court of Appeals of Georgia.

Submitted Oct. 30, 1979.

Decided March 10, 1980.

Joe W. Cook, Stone Mountain, for appellant.

William Boyd Lyons, Larry K. Janney, Atlanta, for appellee.

SOGNIER, Judge.

Appellee Gault, plaintiff in the lower court, entered into a sales contract to purchase a house from appellant Rollins. This contract had certain contingencies which are at issue in this case, as follows: "2. (c) At closing, Purchaser agrees to pay the purchase price to Seller as follows: All cash to Seller at closing. Purchaser to apply for and accept, if approved V.A. first mortgage loan in the principal amount of $46,000.00 for a term of 30 years to be amortized in equal monthly payments, including principal, interest, property tax and insurance . . . 9. This sale is contingent upon Purchaser's ability to acquire the above described loan. If said loan is not available, this contract is null and void and all earnest money is to be refunded to Purchased (sic)." The contract also contained a special stipulation, as follows: "19. This sale is contingent upon Purchaser's present home selling and closing, with a 72 hour first right of refusal if Seller should receive another contract to purchase."

The appellant-seller, Rollins, through his agent gave oral notice on April 2, 1978 to the appellee-purchaser, Gault, through appellee's agent that appellant had another contract and appellee could waive the contingency in paragraph 19 of the contract if he wished. Testimony was offered that this contingency was waived within the 72-hour period. Also, on April 2, according to the date on the contract, appellant executed a contract for the sale of this same house to a third party without mention of the so-called 72-hour provision in his previous contract. Plaintiff/appellee Gault sued for damages for breach of the contract. The judge heard the case without a jury and found for the plaintiff/appellee Gault and awarded damages. In the findings of fact and conclusions of law, the judge found that the defendant/appellant Rollins, by signing the second contract, deprived plaintiff of his 72-hour "right of first refusal."

The above quoted stipulation 19 was ambiguous but all parties and the judge interpreted it as allowing the appellee-purchaser Gault 72 hours in which to advise seller that he (Gault) would remove this contingency if another sales contract was tendered to appellant-seller on this property. The contract would then be unequivocal in this regard. Evidence may be received from the parties to aid in the interpretation of an ambiguous provision (Code Ann. § 20-704; Swanson v. Mobley, 33 Ga.App. 791, 127 S.E. 806 (1925)) and the parties understanding of the...