Union Commerce Leasing Corp. v. Beef 'N Burgundy, Inc.

• Decision Date: 11 July 1980
• Docket Number: No. 59537,59537
• Citation: 155 Ga.App. 257,270 S.E.2d 696
• Parties: UNION COMMERCE LEASING CORP. v. BEEF 'N BURGUNDY, INC. et al.
• Court: Georgia Court of Appeals

Page 696

270 S.E.2d 696

155 Ga.App. 257

UNION COMMERCE LEASING CORP. v. BEEF 'N BURGUNDY, INC. et al.

No. 59537.

Court of Appeals of Georgia.

Argued March 11, 1980.

Decided July 11, 1980.

Bernard L. Greer, Jr., B. Lee Crawford, Jr., Richard L. Stumm, Atlanta, for appellant.

Wayne L. Cardon, Atlanta, for appellees.

SMITH, Judge.

Appellant, Union Commerce Leasing Corporation, brought this action seeking to recover rental due under a lease of a cash register and two "bar guns." Appellee Beef 'N Burgundy asserted a defense of breach of warranty. Appellant contends it made no warranty. Motions for summary judgment were filed by both sides. The motions were denied. At trial, the trial court directed a verdict in favor of appellees Goodrich and Gilchrist, the sureties to the lease agreement. The trial court also directed a verdict in favor of the remaining appellees on appellant's claim for rental due on the cash register. However, the court directed a verdict for appellant in the amount of $3,345.65 on its claim for rental due on the two bar guns. The court disallowed recovery of attorney fees. We affirm in part and reverse in part with direction.

1. The trial court denied appellant the rental value of the cash register under the lease agreement because "the plaintiff did not fulfill the terms of his warranty." Appellant argues no such warranty exists. We agree.

Under the lease, an electronic cash register and two bar guns were to be delivered by a "Supplier," Automated Data Systems, Inc. Paragraph 1 of the lease contains the following language: "Description of Leased Equipment (Hereinafter called 'equipment')-DTS Model 400; S/N 10437 Electronic Cash Register interfaced/ 2/6 brand guns complete with liquor room, training, 1 year warranty on parts and labor." The description is typewritten. The remainder of the contract is a printed form, supplied by appellant. Paragraph 7 states: "SELECTION OF EQUIPMENT: ACCEPTANCE: WARRANTIES: REPRESENTATIONS. Lessee has selected both the equipment and the Supplier from whom Lessor covenants to purchase the equipment at Lessee's request. Lessee agrees to accept the equipment if delivered in good repair, and to execute the delivery receipt supplied by Lessor, as evidence thereof. Lessee agrees to hold Lessor harmless from specific performance of this lease and from damages, if for any reason the supplier fails to deliver the equipment so ordered. Lessee agrees that any delay in delivery of the equipment shall not affect the validity of this lease. LESSEE AGREES THAT THE EQUIPMENT LEASED HEREUNDER IS LEASED 'AS IS' AND IS OF A SIZE, DESIGN AND CAPACITY SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT THE SAME IS SUITABLE FOR LESSEE'S PURPOSES, AND THAT LESSOR HAS MADE NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY OR DURABILITY OF SAID EQUIPMENT FOR THE PURPOSES AND USES OF LESSEE, OR ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Lessor hereby assigns to Lessee for and during the terms of this lease any applicable factory warranty covering the leased equipment. Lessee's obligations to pay the rentals or otherwise under this lease shall be and are absolute and unconditional. All proceeds of any warranty recovery by Lessee from the manufacturer of supplies of the equipment shall first be used to repair or replace the affected equipment. Lessee agrees to settle all such claims with the supplier of the leased equipment and agrees further not to set up against Lessee's obligations any such claims as a defense, counterclaim, set-off, or otherwise.

"LESSEE ACKNOWLEDGES AND AGREES THAT NEITHER THE SUPPLIER NOR ANY SALESMAN, EMPLOYEE, REPRESENTATIVE OR AGENT OF THE SUPPLIER IS AN AGENT OR REPRESENTATIVE OF LESSOR, AND THAT NONE OF THE ABOVE ARE AUTHORIZED TO WAIVE OR ALTER ANY TERM, PROVISION OR CONDITION OF THIS LEASE, OR MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THIS LEASE OR THE EQUIPMENT LEASED HEREUNDER. Lessee further acknowledges and agrees that Lessee, in executing this lease, has relied solely upon the terms, provisions, and conditions contained herein, and any other statements, warranties or representations, if any, by the supplier, or any salesman, employee, representative or agent of the supplier, have not been relied upon, and shall not in any way affect Lessee's obligation to pay the rent and otherwise perform as set forth in this lease." The trial court ruled that the warranty contained in the description of the items to be supplied constituted part of appellant's contractual obligation which controlled over the disclaimer provisions of Paragraph 7. Appellant argues that the "Description of Leased Equipment" refers solely to that which Beef 'N Burgundy was to receive from the "Supplier."

"The cardinal rule of construction of contracts is to determine the intention of the parties thereto, and that construction will be favored which gives meaning and effect to all of the terms of the contract over that which nullifies and renders meaningless a part of the language therein contained. Atlanta, Knoxville, etc., Ry. Co. v. McKinney, 124 Ga. 929, 53 S.E. 701, 6 L.R.A. (NS) 436, 110 Am.St.R. 215; Dooley v. Savannah Bank & Trust Co., 199 Ga. 353, 34 S.E.2d 522; Simpson v. Brown, 162 Ga. 529, 134 S.E. 161, 47 A.L.R. 865." Burch v. Ragan, 92 Ga.App. 605, 607, 89 S.E.2d 541 (1955). "... (I)n construing contracts the entire writing is to be taken into consideration to ascertain the intention of the parties and, if the same can be ascertained, that intention should govern. Bridges v. Home Guano Co. 33 Ga.App. 305, 309, 125 S.E. 872." Cummings v. Cummings, 89 Ga.App. 529, 532, 80 S.E.2d 204 (1954). "... (I)f possible, all of its provisions should be so interpreted as to harmonize with each other...." McCann v. Glynn Lumber Co., 199 Ga. 669, 674, 34 S.E.2d 839 (1945).

In the instant case, there are two possible constructions. Either the warranty is part of appellant's obligation and conflicts with the warranty disclaimers or it is merely a statement of what was to be provided by the supplier or manufacturer.

Appellant argues that the latter construction should be adopted since such a construction is reasonable and will "give effect to each material and valid clause (of the contract)." Marbut v. Empire Life Ins. Co., 143 Ga. 654, 657, 85 S.E. 834 (1915). We agree.

When viewed in conjunction with Paragraph 7, the "Description of Leased Equipment" clearly relates to that which was to be provided by the "Supplier." The agreement states: "Lessee agrees to hold Lessor harmless if, for any reason, the supplier fails to deliver the equipment so ordered." The term "equipment" expressly refers to what is included under the "Description of Leased Equipment." Moreover, the agreement...