dissenting.
I respectfully dissent because a jury issue exists as to whether the lease option contract requires Smith to return the $125,000 down payment made by Persichetti and O’Brien.
There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains the jury must then resolve the ambiguity.
(Citation and punctuation omitted.) Karlan, Inc. v. King, 202 Ga. App. 713, 715 (1) (415 SE2d 319) (1992). On appeal, we must review the record de novo to determine whether the trial court correctly construed the contract. Sagon Motorhomes v. Southtrust Bank of Ga., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).
In this case, I agree with the trial court’s conclusion that the phrase “down payment” is unambiguous. A down payment is “a part of the full purchase price paid at the time of purchase or delivery with the balance to be paid later.” Webster’s Ninth New Collegiate Dictionary (1984). However, I disagree with the trial court’s conclusion that this down payment must be returned, as a matter of law, because the plaintiffs declined to exercise the option. The contract is silent with regard to whether the $125,000 down payment should be forfeited, or, alternatively, refunded, if the appellees elected not to exercise their option to purchase the commercial property. The “usual and common signification” of “down payment” also fails to answer this question. See OCGA § 13-2-2 (2). As there is no language to construe, the rule that ambiguous contract language should be construed against the drafter provides no assistance either. See OCGA § 13-2-2 (5). Thus, we must turn to parol evidence to determine the intent of the parties. See OCGA § 13-2-2 (1); Raymond Rowe Furniture Co. v. Simms, 84 Ga. App. 184, 186 (65 SE2d 830) (1951) (parol evidence admissible when contract of sale “completely lacking as to a description of the model, style and size of refrigerator intended to be sold”).
In this case, the evidence on the parties’ intent conflicts. Appellees contend that Smith could retain their down payment only if they actually purchased the property. Smith contends, on the other hand, *362that the down payment was not refundable because it was also consideration for the option to purchase. In an affidavit submitted in opposition to the appellees’ summary judgment motion, Smith averred:
4. The parties to the Agreement never discussed the return or refund of any money to the Plaintiffs and it was never the intent of the parties for the Defendant to refund any money to the Plaintiffs. 5. The $4,000 per month referred to in paragraph 2 of the Agreement was strictly rent and the Affiant agreed to allow $36,000 credit towards the purchase price if and only if the Plaintiffs purchased the property. 6. The $125,000 down payment was paid on May 19, 1997 as consideration for the exclusive option to purchase the property and it was never the intent of the parties to the Agreement to refund said $125,000 but only to give credit towards the purchase price if and only if the Plaintiffs purchased the property.
The majority incorrectly concludes that this affidavit conflicts with Smith’s deposition testimony.4 Appellant did not testify that the $125,000 was only a down payment, and he was never asked about the consideration for appellees’ option to purchase. “[T]o ‘contradict’ is ‘to assert the contrary.’ ” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2), n. 3 (343 SE2d 680) (1986). In this case, Smith explained in his affidavit that the down payment was consideration for the option that would also be applied toward the purchase price if the appellees purchased the property. There is no inconsistency in this testimony because the parties could have intended that the $125,000 serve as both consideration and a down payment.
More importantly, application of the Prophecy rule of construction does nothing to the analysis in this case. The issue in this case is not whether the $125,000 should be considered a down payment. The *363issue is whether this “down payment” would be forfeited or refunded if the appellees failed to exercise their option. Because the parties’ intent with regard to this issue is disputed, it should be resolved by a jury. See Southeastern Flight Academy v. Hazell, 213 Ga. App. 369, 370 (1) (444 SE2d 402) (1994) (intent of parties with respect to tuition refund policy “evidentiary, factual matter for resolution by the jury and not a matter of law for determination by the trial court”). See also Crestlawn Mem. Park v. Scott, 146 Ga. App. 715, 717 (1) (247 SE2d 175) (1978).
Decided July 14, 2000 Reconsideration denied July 27, 2000 Adkins & Whitfield, Russell L. Adkins, Jr., for appellant. Womble, Carlyle, Sandridge & Rice, Nisbet S. Kendrick III, Caroline K. Bell, for appellees.I am authorized to state that Judge Eldridge and Judge Mikell join in this dissent.
The deposition testimony relied upon by the majority follows:
Q. What is the down payment that’s referred to?
A. That’s a down payment like you pay $10,000 on a car or something. That’s a down payment.
Q. A down payment toward the purchase price?
A. Yes.
Q. And again, it was your understanding as it says in paragraph 3 that the $125,000 was to be down payment relating to that purchase?
A. Yes.