Whitney v. Hagan

• Decision Date: 27 September 1941
• Docket Number: No. 28960.,28960.
• Citation: 16 S.E.2d 779
• Parties: WHITNEY et al. v. HAGAN.
• Court: Georgia Court of Appeals

16 S.E.2d 779

WHITNEY et al.

v.HAGAN.

No. 28960.

Court of Appeals of Georgia,

Division No. 1.

Sept. 27, 1941.

Syllabus by the Court.

The court erred in sustaining the demurrer to the petition.

Error from City Court of Decatur; Frank Guess, Judge.

Action by F. E. Whitney and others against H. T. Hagan for rent of a lot in the City of Atlanta. A demurrer to the petition was sustained, and plaintiffs bring error.

Reversed.

Wm. S. Shelfer, of Atlanta, for plaintiffs in error.

Wm. F. Buchanan, of Atlanta, for defendant in error.

GARDNER, Judge.

The plaintiffs instituted suit against the defendant for rent of a lot in the City of Atlanta. The claim for rent arose impliedly out of an option agreement between the parties. A demurrer to the petition was sustained and the plaintiffs excepted.

The pertinent provisions of the option contract are as follows: "[1] Whereas, there exists between the two parcels above set out a strip of ground fifty (50) feet wide marked 'Reserved for street' and designated as lot 'C upon the plat above referred to, which strip" was particularly described. "[2] Whereas, the party of the second part herein desires the option and privilege of purchasing said fifty (50) foot strip above described, and the parties of the first part desire to grant said option and privilege to purchase in the event said strip is not finally dedicated to the public for street purposes and subject to certain conditions hereinafter mentioned. [3] Now, therefore, in consideration * * * it is mutually agreed by the parties as follows: [4] The parties of the first part hereto are to have the privilege during four years and six months from the date of this agreement of deciding to either dedicate the fifty (50) foot strip above described for street purposes or to sell said strip. [5] If the parties of the first part herein decide to sell, the said parties of the first part agree to give notice to the party of the second part herein, his heirs and assigns, to this effect and an option for sixty (60) days from the date of such notice to buy for eight thousand ($8000) dollars, upon the following terms to wit: * * *. [6] If the party of the second part herein, his heirs and assigns, fails to exercise the right to purchase under the above option the parties of the first part herein are to have the free and unrestricted right to make such disposition and use of the property as they see fit. [7] If the desire is to dedicate the ground for a street, notice is to be given to the party of the second part, his heirs and assigns, to this effect, and the parties of the first part herein agree within a reasonable length of time to execute and deliver a deed conveying said strip to Fulton County, Georgia, for street purposes. [8] If, during the four years and six months mentioned above, the party of the second part, his heirs and assigns, has received no notice of a decision to either dedicate or sell said strip, he is then to have the privilege of demanding a decision from the parties of the first part, their successors, heirs and assigns, within ninety days from the date of the expiration of said period of four years and six months; then, if no decision is reached by the parties of the first part, their successors, heirs and assigns, within said ninety days, the party of the second part may either exercise the option to buy upon the same terms and conditions as outlined above or require the dedication of the ground for a street. [9] The parties of the first part, their successors, heirs and assigns, further agree that the party of the second part, his heirs and assigns, shall have the use of the fifty (50) foot strip above referred to, same to be used free of all expenses to the party of the second part until such time as the parties of first part, their successors, heirs and assigns, dedicate said strip for a street, or until said strip is sold as above set forth." For convenience we have numbered the above paragraphs taken from the contract.

It is agreed by both parties in this court that the contract is free from ambiguity. This being true, it is the duty of the court to construe it. In construing contracts it is the duty of the court to put a fair and reasonable construction thereon. It was held in Empire Mills Company v. Burrell Engineering, etc., Co., 18 Ga.App. 253, 254, 89 S.E. 530: "In construing every contract it is necessary to look to the purpose intended, and where two constructions are possible, one unreasonable and the other reasonable, to give to the instrument the reasonable construction which would serve to put into effect...