Warrior Constructors, Inc. v. E. C. Ernst Co., Inc.
| Decision Date | 18 January 1973 |
| Docket Number | No. 47432,3,2,Nos. 1,47432,s. 1 |
| Citation | 195 S.E.2d 261,127 Ga.App. 839 |
| Parties | WARRIOR CONSTRUCTORS, INC. v. E. C. ERNST COMPANY, INC |
| Court | Georgia Court of Appeals |
Swift, Currie, McGhee & Hiers, George W. Hart, Frederick F. Saunders, Jr., Atlanta, for appellant.
Gambrell, Russell, Killorin, Wade & Forbes, David A. Handley, Max B. Hardy, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
The defendant general contractor appeals from the denial of its motion for summary judgment. The plaintiff subcontractor placed certain of its electrical equipment in a building at the job site which flooded after a heavy rainfall. The subcontractor filed an action alleging that the general contractor was liable for the damage to the equipment.
Before the action, however, the subcontractor had executed a document which provided in pertinent part: '(Subcontractor) does hereby release (General Contractor) from any and all claims of every nature arising under or by virtue of said subcontract'. The general contractor contends this is an unambiguous and general release which extinguishes the claim asserted and that its motion for summary judgment should have been granted.
'Construction of ambiguous contracts is the duty of the court, and it is only after application thereto of the pertinent rules of construction, and they remain ambiguous, that extrinsic evidence is admissible to explain the ambiguity.' Davis v. United American Life Ins. Co., 215 Ga. 521(2), 111 S.E.2d 488. Farm Supply Co. of Albany v. Cook, 116 Ga.App. 814, 816, 159 S.E.2d 128, 130.
The sole question here is one of law-the construction of the release clause. It either includes the claim alleged in the subcontractor's petition or it does not and the answer to this question must come from the court not a jury.
The subcontractor's petition alleges that it placed the damaged equipment in the room 'pursuant to the authority, requirements and provisions of its subcontract', that 'it was the duty of the defendant under its contract . . . to provide protection for all work being performed by the...
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...relationship and the Court finds no such ambiguity in this case. Georgia Code Annotated § 20-701; Warrior Constructors, Inc. v. E. C. Ernst Co., Inc., 127 Ga.App. 839 (195 S.E.2d 261). The relationship of Aetna and Chem-Tech as to the ownership of the accounts is defined in the factoring ag......
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...receipt, see Southern Bell, etc., Co. v. Smith, 129 Ga. 558, 59 S.E. 215 (1907) and, as we stated in Warrior Constructors v. E. C. Ernst Co., 127 Ga.App. 839, 840, 195 S.E.2d 261 (1973), " 'Construction of ambiguous contracts is the duty of the court, and it is only after application theret......
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...remaining in a contract after construction by the court raises a jury question. O.C.G.A. § 13-2-1; Warrior Constructors v. E.C. Ernst Company, 127 Ga.App. 839, 195 S.E.2d 261 (1973). 3 The court is not finding plaintiffs to be "judicially estopped" by this letter. Rather, the letter is mere......
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