dissenting.
I respectfully dissent from the majority opinion. I agree that the judgment should be reversed but cannot agree that the construction of an unambiguous lease provision “must be left for resolution by a jury.” In my opinion this case should be reversed with direction that a judgment be entered for the appellant on this issue.
“The construction of a contract is a question of law for the court.” Code Ann. § 20-701 (Code § 20-701). “ ‘The construction of a contract, if needed, being a question of law for the court, as well as a duty that rests upon the court, there can be no ambiguity within the rule to which we have referred, unless and until an application of the pertinent rules of interpretation leaves it really uncertain which of two or more possible meanings represents the true intention of the parties’ ” (Emphasis in original). Davis v. United Am. Life Ins. Co., 215 Ga. 521, 526 (111 SE2d 488). “The first rule of construction is the general principle that parol evidence is inadmissible to vary, add to or take from a written contract but that ambiguity may be explained by such evidence.” (Emphasis supplied.) 6 EGL 102, Contracts, § 54; Ralston Purina Co. v. Black, 121 Ga. App. 661, 663 (175 SE2d 125); Columbia Nitrogen Corp. v. Dean’s Power Oil Co., 136 Ga. App. 879, 883 (222 SE2d 602).
In the instant case that provision of the lease contract found to be ambiguous by the majority stated: “Lessee has first right of refusal to renew lease at renewal date for a two (2) year period with 10% increase in rental.” I find no ambiguity in this sentence.
“ ‘ “Ambiguity” is defined as duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument,’ and ‘. . . also signifies “of doubtful or uncertain nature; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful purport; open to various interpretations.” ’ ” Early v. Kent, 215 Ga. 49, 50 (108 SE2d 708). I find none of these in the sentence in issue. The sentence clearly, distinctly, and succinctly sets forth the right of the lessee to have first refusal to re-lease the premises at the end of the present term for a period of two years at a 10 % increase in rental.
Although we have found no Georgia case directly in point construing the “right of first refusal” to re-lease the demised premises this question has arisen frequently in other states. See Annotations in 127 ALR 894, 6 ALR2d 820, 34 ALR2d 1158, 70 ALR3d 203, and 76 ALR3d 1139. All are in agreement. “In the majority of cases option clauses giving such ‘first,’ or ‘prior,’ rights to re-lease have been held to be conditional upon the desire or purpose of the optionor.” 127 ALR 894 at 896, citing Landowners Co. v. Pendry, 151 Kan. 674 (100 P2d 632); Walsh v. Ft. Schuyler Brewing *310Co., 83 Misc. 488 (146 NYS 160); Hill v. Prior, 79 NH 188 (106 A 641); R. I. Realty Co. v. Terrell, 254 NY 121 (172 NE 262); see also 51C CJS 271, Landlord & Tenant 269-271, §§88 (3) (4) (5). See also collection of cases at 6 ALR2d 823-829 stating majority view “that the option, right, or privilege is conditional and rests upon the willingness of the lessor to lease the property again at the term expiration...” 6 ALR2d 820, 821, § 1.
As the lessee has no greater right to re-lease than that granted in the lease and the right conferred was only “first refusal to renew lease” we should look closely at this phrase. The term “right of refusal” is both delimiting and descriptive. For a lessee to have the “right of refusal” the lessor must first make him an offer. The word “first” is also delimiting and descriptive. A provision in the lease granting to lessee the “first” right, privilege, or option to re-lease or purchase “has generally been construed as conferring a merely conditional option, dependent upon the lessor’s subsequent decision or offer to sell.” 34 ALR2d 1158 at 1160, § 2.
I find no ambiguity in a sentence which grants a right of first refusal to lessee to re-lease the premises for a stated period at a stated increase in rental.
I am authorized to state that Judge Banke and Judge Sognier concur in this dissent.