Village Enterprises, Inc. v. Georgia R. R. Bank & Trust Co.

• Decision Date: 29 April 1968
• Docket Number: No. 43339,No. 3,43339,3
• Citation: 161 S.E.2d 901,117 Ga.App. 773
• Court: Georgia Court of Appeals
• Parties: VILLAGE ENTERPRISES, INC. v. GEORGIA RAILROAD BANK & TRUST COMPANY

Page 901

161 S.E.2d 901

117 Ga.App. 773

VILLAGE ENTERPRISES, INC. v. GEORGIA RAILROAD BANK & TRUST COMPANY.

No. 43339.

Court of Appeals of Georgia, Division No. 3.

April 29, 1968.

Rehearing Denied May 15, 1968.

Certiorari Denied July 2, 1968.

Hull, Towill & Norman, W. Hale Barrett, Augusta, for appellant.

Cumming, Nixon, Eve, Waller & Capers, Gwinn H. Nixon, Wm. Byrd Warlick, Augusta, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

Village Enterprises, Inc., brought an action for declaratory judgment against Georgia Railroad Bank & Trust Company, seeking a judicial determination of the meaning of, and the application of, a restrictive covenant in a lease relating to a shopping center. Both parties moved for a summary judgment and after hearing the court granted a summary judgment in favor of the defendant bank. The plaintiff appealed. Held:

1. 'The construction of a contract is a question of law for the court. Where any matter of fact is involved (as the proper reading of an obscurely written word), the jury should find the fact.' Code § 20-701. 'The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction.' Code § 20-702. 'A contract may be so clear as not to require interpretation, but a mere lack of clarity on casual reading is not the criterion for determining whether a contract is afflicted with ambiguity within the rule as to the admission of parol evidence to explain its meaning. Nor is a contract ambiguous within that sense merely because it may be even difficult to construe. The construction of a contract, if needed, being a question of law for the court, as well as a duty that rests upon the court, there can be no ambiguity within the rule to which we have referred, unless and until an application of the pertinent rules of interpretation leaves it really uncertain which of two or more possible meanings represents the true intention of the parties.' McCann v. Glynn Lumber Co., 199 Ga. 669, 679, 34 S.E.2d 839, 845; Dorsey v. Clements, 202 Ga. 820, 823, 44 S.E.2d 783, 173 A.L.R. 509.

2. Where the owner of a 17 acre tract of land developed it as a shopping center and leased lots to various tenants, including a banking business, which leases described the tract leased by metes and bounds and further described it as 'being delineated on a master plan of Daniel Village Shopping Center prepared by Eve and Stulb, Architects, from engineering survey dated October 24, 1954, as revised in November, 1954, on January 10, 1955, and on February 27, 1955, and being shown as Building A, Units 5 and 5-A (in the case here), on said master plan, the said master plan and any subsequent revisions thereof which shall not substantially vary from that above described to be identified by the initials of the lessor and the lessee, and a copy thereof shall be on file in the offices of Sherman and Hemstreet, Inc., and with the lessee' and provides that the lessor shall construct a building thereon 'in the nature of a building similar * * * to the buildings which will be constructed by the lessor on other portions of its property known as Daniel Village,' and that '(t)he lessor will not permit, during the term of the lease or any renewal thereof, the use of any property in Daniel Village by any person, firm, association or corporation who shall conduct thereon any banking business, whether it shall be a savings, loan or general commercial banking business except the lessee,' and that lessee will not permit sales practices which 'would tend to detract from or impair the reputation or dignity of * * * the shopping center or the general reputation or dignity of the businesses of others conducted in the shopping center,' and 'the lessee shall not burn or otherwise dispose of any trash, waste, rubbish and garbage in or about the premises of said shopping center' and which permits the lessor to 'contruct additional buildings and change, alter, remodel or remove any of the improvements of the...