Wahnschaff Corp. v. O.E. Clark Paper Box Co., Inc.

Citation166 Ga.App. 242,304 S.E.2d 91
Decision Date07 April 1983
Docket NumberNo. 65558,65558
CourtUnited States Court of Appeals (Georgia)

Warner R. Wilson, Jr., Atlanta, for appellant.

Howell W. Ragsdale, Jr., Atlanta, for appellee.

McMURRAY, Presiding Judge.

Plaintiff O.E. Clark Paper Box Company, Inc. ordered two machines from defendant Wahnschaff Corporation on August 23, 1977. On November 9, 1979, when neither machine had been delivered, plaintiff filed suit against defendant seeking restitution for the amount of money paid toward one machine and specific performance regarding the other machine, as well as damages and litigation expenses. The case was tried without a jury and defendant now appeals a money judgment in favor of plaintiff.

The case sub judice involves two contemporaneous and substantially similar contracts. By one contract, plaintiff agreed to purchase from defendant a "Customized Model 'K' Wrapper," a machine designed to build small boxes. The purchase price was $32,750, with $16,375 down and $16,375 balance to be paid within 30 days from date of shipment. By the other contract, plaintiff agreed to purchase from defendant another type of customized box-making machine, called a "Jersey Automatic." The purchase price was $51,500, with $25,750 down and the balance ($25,750) within 30 days after date of shipment. The down payments for both machines were further divided into $3,750 for each to be paid on August 23, 1977 (the date of the contract), with the remainder ($12,765 for the "K" Wrapper and $22,000 for the Jersey Automatic) payable in December 1977. Defendant agreed to ship both machines "approximately 5-6 months from receipt of firm order."

Plaintiff was unable to complete the down payment until February 1978. In May 1978, when neither machine was ready for shipment, plaintiff attempted to cancel the order for the Jersey Automatic and have the money paid applied toward the "K" Wrapper. Defendant replied that due to circumstances beyond its control and special engineering problems it was behind schedule. In addition, it had invested considerable time and money into the manufacture of the machine and that it would hold plaintiff to the contract.

Nearly a year later, defendant's attorney wrote to plaintiff to determine whether plaintiff wanted the machine or would rather not take the machine and have defendant apply a major portion of the money, already paid by plaintiff, to defray defendant's investment. The parties and their attorneys negotiated the dispute for several months further. On October 1, 1979, defendant's counsel advised plaintiff that in view of the impasse between the parties in being unable to reach a compromise the machines would be held until October 10, 1979, at which time they would be offered for sale on the open market in order to minimize the damages it was suffering as a result of the amount of capital tied up in the machines (the "K" Wrapper was then completed and being held; the Jersey Automatic was not yet completed).

Plaintiff responded by filing suit in November 1979, seeking the return of the money it paid toward the Jersey Automatic as restitution, specific performance of the contract regarding the "K" Wrapper, damages for overtime expenses and lost profits and bad faith damages for travel and litigation expenses. Defendant sometime thereafter sold both machines, rendering specific performance impossible; and the suit became one for restitution of all monies tendered by plaintiff to defendant and for damages. The case proceeded to trial without a jury, and the trial judge found for plaintiff, awarding it $42,125 in restitution and $3,622 in litigation expenses, less payment of $1,406.45 due to defendant by plaintiff for spare parts ordered, for a total award of $44,340.55. Defendant appeals. Held:

1. Defendant first contends that the trial court erred in that it failed to construe the contracts so as to uphold them as provided in OCGA § 13-2-2(4) (formerly Code Ann. § 20-704, Rule 4 (Ga.L.1964, pp. 414, 415)). However, inasmuch as the trial court found the parties to be bound by contract, defendant's contention is in actuality that the trial court erred in not construing the written contracts so as to uphold them. More specifically, defendant challenges, in effect, the finding of the trial court that the written contracts were ambiguous, thereby looking to parol evidence to determine the intentions and expectations of the parties as to the ambiguous terms.

We concur with the trial court. Several provisions in the contracts were ambiguous, the most material being that defendant would ship the machines "approximately 5-6 months from receipt of firm order." Both the terms "approximately" and "firm order" are ambiguous in that their indistinctiveness makes their meaning uncertain and capable of more than one reasonable definition. See Travelers Indemnity Co. v. A.M. Pullen & Co., 161 Ga.App. 784, 788-789(6), 289 S.E.2d 792 and cases cited therein. The ambiguities rendered it appropriate for the trial court, as trier of fact, to consider parol evidence to determine the meaning of those material terms and thus the true agreement between the parties. OCGA § 13-2-2(1) (formerly Code Ann. § 20-704, Rule 1, supra). See also OCGA § 13-2-3 (formerly Code Ann. § 20-702) and OCGA § 13-2-4 (formerly Code Ann. § 20-703). Moreover, the trial court correctly concluded that the contracts were drafted by defendant and therefore the contract provisions were to be construed most favorably toward plaintiff. OCGA § 13-2-2(5) (formerly Code Ann. § 20-704, Rule 5), supra. The trial court, in applying all the relevant rules of construction, correctly looked to parol evidence in addition to the written contracts to determine the true contracts between the parties.

2. Defendant's second enumeration of error is that the trial court erred in...

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10 cases
  • Mitcham v. Blalock
    • United States
    • Georgia Court of Appeals
    • June 30, 1994
    ...of the amount of an award of attorney fees cannot be based on guesswork. See generally Wahnschaff Corp. v. O.E. Clark Paper Box Co., 166 Ga.App. 242, 244(2), 304 S.E.2d 91 (1983)." Southern Cellular Telecom v. Banks, 209 Ga.App. 401, 402, 433 S.E.2d 606, supra. Such an award must be based o......
  • SPS Industries, Inc. v. Atlantic Steel Co.
    • United States
    • Georgia Court of Appeals
    • February 26, 1988
    ...did not occur, a question arises as to whether an "attempt to cancel had never taken place." Wahnschaff Corp. v. O.E. Clark Paper etc. Co., 166 Ga.App. 242, 244, 304 S.E.2d 91. Viewed in favor of plaintiff, the evidence shows that the first pair of pinions was shipped to defendant on Januar......
  • City of College Park v. Pichon
    • United States
    • Georgia Court of Appeals
    • March 17, 1995
    ...out a proper case for these damages,' and they must therefore be stricken from the award. [Cit.]" Wahnschaff Corp. v. O.E. Clark Paper Box Co., 166 Ga.App. 242, 244(2), 304 S.E.2d 91 (1983). Judgment affirmed in part, reversed in part, and remanded with BIRDSONG, P.J., and BLACKBURN, J., co......
  • Sheppard v. Sheppard
    • United States
    • Georgia Court of Appeals
    • November 6, 1997
    ...fees based on its expertise, there must be some evidence to support the court's award. See Wahnschaff Corp. v. O.E. Clark Paper Box Co., 166 Ga.App. 242, 243(2), 304 S.E.2d 91 (1983) (" 'Since an allowance for damages cannot be based on guesswork (cit.), the plaintiff failed to make out a p......
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