South Atlanta Associates, Ltd. v. Strelzik

Carley, Chief Judge,

concurring in part and dissenting in part.

Insofar as the majority holds in Division 2 that summary judgment was erroneously granted in favor of appellee-defendant Strelzik, I concur in the judgment. However, insofar as the majority holds in Division 1 that appellant-plaintiff’s motion for summary judgment was correctly denied, I must respectfully dissent.

The following undisputed facts are, in my opinion, material to the disposition of this appeal: Appellee Strelzik is the president of Housecall, Inc. After negotiations, Housecall, Inc., agreed to lease *580premises from appellant. Appellant sent a copy of a lease agreement and a copy of a guaranty agreement for execution by appellee Strelzik. The lease agreement specified that it would become effective only upon appellee Strelzik’s execution of the guaranty agreement. The copy of the lease agreement which had been submitted by appellant was executed and returned to it. However, the guaranty agreement which was returned with the executed lease agreement was not that copy which had been submitted to appellee Strelzik by appellant. Instead, appellee Strelzik returned to appellant a guaranty agreement which he himself had drafted. This agreement named three guarantors: appellee Strelzik; appellee-defendant Shefte; and Richard S. Midlick. Only the signatures of the two appellees appeared on the guaranty agreement, however.

Under these circumstances, the majority holds that a genuine issue of material fact remains as to whether appellees have incurred any liability on the guaranty agreement because Midlick was named in the agreement but his signature does not appear thereon. The majority concludes that three signatures were required but an issue of fact remains as to whether there was a mutual departure or waiver of that requirement. However, simply because an agreement is drawn for the execution of multiple parties, it does not necessarily follow that, as a matter of law, the agreement requires the signature of all and is otherwise unenforceable against the actual signatories thereto absent a showing of mutual departure or waiver. In the construction of contracts, it is the parties’ intent which controls, and the form of the agreement is but one of the factors which must be considered. “[T]he first and fundamental rule is to ascertain the intention of the parties, and to this end the whole instrument, together with its circumstances, must be considered.''' (Emphasis supplied.) A. C. Alexander Lumber Co. v. Bagley, 184 Ga. 352, 362 (1) (191 SE 446) (1937). Accordingly, the fact the agreement named three guarantors is certainly one factor to be considered in determining whether there was a requirement that Midlick sign, which requirement serves to release ap-pellees from liability absent a showing of mutual departure or waiver. However, the mere absence of Midlick’s signature does not obviate a consideration of all of the relevant attendant circumstances in determining whether the agreement nevertheless evidences no requirement that Midlick sign but, rather, the intent that it otherwise be complete and enforceable against appellees without regard to mutual departure or waiver. See generally Butler Naval Stores Co. v. Glass, 187 Ga. 317, 323-324 (200 SE 286) (1938).

Considering all of the relevant circumstances and applying the applicable rules of construction, I believe that the guaranty agreement is complete and enforceable as against appellees and that there was no requirement of Midlick’s signature for appellees to waive or *581from which they could depart. Among the circumstances which must be considered is that the guaranty agreement was executed and submitted by appellees in connection with the lease of appellant’s premises. Accordingly, the guaranty agreement executed by appellees must be construed in conjunction with that contemporaneous lease agreement. See generally Employers Commercial Union Ins. Co. v. Wrenn, 132 Ga. App., 287, 288 (2) (208 SE2d 124) (1974). The parties clearly contemplated the creation of a viable and enforceable lease and, by its terms, the lease agreement conditioned its very effectiveness upon appellee Strelzik’s execution of a guaranty agreement. Thus, a construction of the guaranty agreement which will uphold its enforceability and the consequent enforceability of the lease is clearly the preferred construction. “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part. . . .” OCGA § 13-2-2 (4).

The guaranty agreement must itself be construed mosbstrongly against appellees, as the makers thereof. See Leavitt v. Carr, Abney & Tabb, 171 Ga. App. 412 (1) (319 SE2d 882) (1984). The executed guaranty was submitted to appellant in ostensible satisfaction of the condition precedent to the creation of an enforceable lease. It was not submitted as a counteroffer to appellant’s requirement of a guaranty of the lease. Nothing in the executed guaranty agreement indicated that appellees were proposing it as a counteroffer or that appellees’ obligations were expressly conditioned on the signatures of all three of the named guarantors. Moreover, no such proposal as a counteroffer or imposition of a requirement of Midlick’s signature was ever verbally communicated to appellant. Since appellant allowed Housecall, Inc., to go into possession of the leased premises, it should have been abundantly clear to appellees that appellant apparently understood the submitted guaranty agreement, not as a conditional counteroffer but, as evincing more than full satisfaction of the condition precedent to the enforceability of the lease. Insofar as appellant was concerned, the unqualified agreement signified that appellee Strelzik had not only given his own required personal guaranty of the lease, he had also made an independent effort to secure co-guarantors and had been successful in convincing one of two others to share the obligation to guaranty Housecall, Inc.’s lease. If appellant’s understanding of ap-pellees’ execution and submission of the guaranty agreement was mistaken, and it was not appellees’ intent that their guaranty would signify satisfaction of the condition precedent, then appellees should not have allowed Housecall, Inc., to accept possession of the leased premises without first notifying appellant that they had made only a conditional counteroffer and that the signature of Midlick was necessary to the creation of a viable lease. “Where a written contract has an *582apparent meaning at variance with its real meaning, it may bind the author of the ambiguity contrary to its real meaning, if this meaning was so obscurely expressed that the other party was likely to be misled and was misled, and if the circumstances entitled him to timely notice of his mistake, and notice was not given. This is simply the expression in another form of the rule of the code, that where the parties understand the contract differently between themselves, and one knows that the other understands it in a particular sense, that sense is the one in which it shall be interpreted and administered. [OCGA § 13-2-4].” Hill v. John P. King Mfg. Co., 79 Ga. 105, 109-110 (5) (3 SE 445) (1887).

Peacock v. Horne, 159 Ga. 707, 722 (2) (126 SE 813) (1925) does not authorize a contrary result. In Peacock, the purported purchaser of timber drafted an instrument to convey the interests of the three owners. The instrument, as drafted, contained lines for the signatures of each of the three owners. The purported purchaser then transmitted the draft to the three owners and requested that each sign. Construing the instrument most strongly against the purported purchaser, as the drafter, “the manifest intention of the parties to this contract [was] that it was to be signed by all of the [owners] before it became binding on [those] who signed it; and on the failure and refusal of one of the [owners] to sign it, it was not binding on those who did execute it.” Peacock v. Horne, supra at 723 (2). The circumstances of the instant case are totally different. It was appellee Strelzik who drafted the instrument and it was appellees who executed and submitted it to appellant. The executed agreement was not delivered as a conditional counteroffer for appellant’s acceptance or rejection, but in apparent full satisfaction of the condition precedent to the creation of a valid lease. Appellees did not request that appellant secure the signature of Midlick and did not object when appellant, in reliance on the unqualified guaranty, allowed Housecall, Inc., to enter into possession of the leased premises. Under these circumstances, unlike those of Peacock v. Horne, supra, “the principle of law ([OCGA § 13-2-4]) that where the parties to a contract differ among themselves as to its meaning, that meaning placed upon the contract by one of the parties and known to be thus understood by the other at the time shall be held as the true meaning, was applicable. . . .” Cason v. Duke, 28 Ga. App. 170, 171 (2) (110 SE 684) (1922).

As the movant for summary judgment, appellant met its burden of producing evidence showing that, notwithstanding the absence of Midlick’s signature, it was the recipient of appellees’ unqualified guaranty. In opposition, appellees proffered no evidence to show that a genuine issue of material fact remained as to the existence of a requirement for Midlick’s signature or as to their liability on the unqualified guaranty which they executed and submitted to appellee. *583There being no issue of fact, the interpretation of the contract was for the court and notj for a jury. See Tidwell v. Carroll Bldrs., 251 Ga. 415, 417 (2) (306 SE2d 279) (1983). However, for the reasons previously discussed, it is my opinion that the interpretation which was made by the trial court is erroneous and that it was error to grant summary judgment in favor of appellee Strelzik and to fail to grant summary judgment in favor of appellant. Therefore, I respectfully dissent to the majority opinion insofar as it fails to reverse the denial of appellant’s motion for summary judgment.

Decided July 14, 1989 Rehearings denied July 31, 1989 Harman, Owen, Saunders & Sweeney, Perry A. Phillips, Craig A. Nance, for appellant. Hishon & Ranney, Robert H. Hishon, Dan R. Musick, for appel-lees.

I am authorized to state that Judge Beasley joins in this opinion.