dissenting.
This case involves a suit for unpaid amounts due on a contract of construction between the State Highway Department of Georgia and Shepherd Construction Company, Inc. an'd REA Construction Company. The contractors moved for summary judgment and the Highway Department moved for judgment on the pleadings, admitting that it owed the sum of $5,981.66. The trial judge, after hearing these two motions, granted a partial summary judgment and awarded the contractors the sum of $5,981.66 without interest until judgment. The judge then dismissed the remaining claims of the *258plaintiffs, which was in effect, the grant of summary judgment to defendant. The plaintiffs appeal.
The majority of this court affirm the entire judgment. I dissent, because I feel a jury question is involved.
1. The first division of the majority opinion is based on Firemen’s Ins. Co. v. Oliver, 182 Ga. 212 (184 SE 858), cited in Colevins v. National Union Fire Ins. Co., 110 Ga. App. 533 (1) (139 SE2d 145). That case was based upon an action on a policy of insurance and held that the claim did not become a liquidated demand until the jury verdict. These cases are not controlling here, for the Highway Department, in answering the complaint, admitted it owed the sum of $5,981.66, thus admitting this liquidated claim. The majority contends that the Highway Department had tendered this amount on January 27, 1970, and the contractors had refused to accept it. It is not at all clear when this amount became due. Since this part of the action was a liquidated demand, interest may be due thereon.
2. The contractors claim the sum of $204,869.37 for the removal of extra muck and sanitary landfill which may or may not have been covered by the contract but was "over-run” and which they contend was removed and for which they have not been paid. They also seek payment for more than one million dollars for additional "overhaul” on excavation.
3. The contract in this case is very voluminous, and from a cursory reading of the majority opinion, one is impressed that said contract is ambiguous. Ordinarily a judge, and not a jury, construes the meaning of a contract, except where there is an obscurely written word. See Code Ann. § 20-701. But the cardinal rule of construction is to ascertain the intention of the parties (Code Ann. § 20-702), and if because of the ambiguity of the contract such intention becomes a question of fact, of course a jury must determine such intention.
4. I do not believe a summary judgment for the plaintiff should have been granted (except as to the admitted sum due), nor do I believe judgment on the pleadings for defendant should have been granted, but to the contrary, the ambiguities and the intentions of the parties should have been decided by a jury as issues of fact.
*2595. The contract refers to and makes a part thereof Volumes 1 and 2 known as "Standard Specifications — Construction of Roads and Bridges,” and all of this must be construed in connection with the contract.
6. One of the chief bones of contention here is the plaintiffs claim that it is entitled to more than one million dollars balance, over and beyond the amount contemplated by his contract, because of "over-run” (expense made necessary because of extra work not specifically contemplated by the contract) which was incurred in removing and working with certain muck over which the new highway was constructed. The contract did provide as to how much per yard would be paid for certain removal of muck, but the contract is ambiguous as to how much muck and landfill might be removed by plaintiff and compensation required of defendant in the event of extra amounts encountered. To say that over a million dollars is due beyond the amount provided by the regular contract somewhat strains the credulity of the average person. The question now arises as to whether the plaintiff could have excavated and hauled (over-haul that is) 100 million dollars worth of muck and excavation and should receive compensation therefor as "over-run” and over-haul on excavation. Surely some limit was implied. Could the plaintiff dig down as deep as one mile or five miles and continue to remove muck at the expense of the taxpayers of Georgia? There are other ambiguities, but this one alone suffices to show that a jury should have been called in to decide as an issue of fact this ambiguity in the contract. See Tarbutton v. Duggan, 45 Ga. App. 31 (7) (163 SE 298); Pinkerton & Laws v. Atlantis Realty, 128 Ga. App. 662, 666 (3) (197 SE2d 749); Stokes v. Walker, 131 Ga. App. 550, 552 (2) (206 SE2d 564).
7. The contractor has been paid over $7 million for his work, and now we need a jury to decide before he collects an additional $205,869.37 on one phase of this contract and over a million dollars on another phase of the contract.
8. For the foregoing reasons, it is unnecessary for me to attempt to analyze or criticize the findings and opinion by the majority, so I simply dissent.