Where, on motion for summary judgment, it appears that the credibility of a witness or witnesses upon whose testimony the grant of the summary judgment depends, is at issue in the case "Neither the trial court nor this court will resolve the matter or is concerned with the credibility" but will leave this matter to the jury, rather than grant summary judgment based on the "uncontradicted" area of the testimony of the witness, whose credibility is for the jury, and not for the trial judge or this court. See in this connection Benefield v. Malone, 112 Ga. App. 408 ( 145 S.E.2d 732); General Gas Corp. v. Carn, 103 Ga. App. 542 ( 120 S.E.2d 156); Bagley v. Firestone Tire c. Co., 104 Ga. App. 736 ( 123 S.E.2d 179); Darby v. Interstate c. Ins. Co., 107 Ga. App. 409 ( 130 S.E.2d 360); Hollis v. St. Joseph Infirmary, 108 Ga. App. 309 ( 132 S.E.2d 841). "The success of an attempt to impeach a witness is always a jury question, as is the credibility of the witnesses where they contradict one another, or themselves.
Where, on motion for summary judgment, it appears that the credibility of a witness or witnesses upon whose testimony the grant of the summary judgment depends, is at issue in the case 'Neither the trial court nor this court will resolve the matter or is concerned with the credibility' but will leave this matter to the jury, rather than grant summary judgment based on the 'uncontradicted' area of the testimony of the witness, whose credibility is for the jury, and not for the trial judge or this court. See in this connection Benefield v. Malone, 112 Ga. App. 408 ( 145 S.E.2d 732); General Gas Corp. v. Carn, 103 Ga. App. 542 ( 120 S.E.2d 156); Bagley v. Firestone Tire c. Co., 104 Ga. App. 736 ( 123 S.E.2d 179); Darby v. Interstate c. Ins. Co., 107 Ga. App. 409 ( 130 S.E.2d 360); Hollis v. St. Joseph Infirmary, 108 Ga. App. 309 ( 132 S.E.2d 841)." Raven v. Dodd's Auto Sales Service, 117 Ga. App. 416, 421 ( 160 S.E.2d 633). "
Bryant v. State, 191 Ga. 686 (2) ( 13 S.E.2d 820); Grant v. Hart, 197 Ga. 662 (7) ( 30 S.E.2d 271). As held in Benefield v. Malone, 112 Ga. App. 408, 411 ( 145 S.E.2d 732): "Affidavits in support of or in opposition to motions for summary judgment must `set forth such facts as would be admissible in evidence' on the trial of the case. Code Ann. § 110-1205.
Moreover, no construction is required or even permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation. Benefield v. Malone, 112 Ga. App. 408, 410 (2) ( 145 SE2d 732) (1965). "It is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless.
In this case, the language employed by the parties in the guaranty is plain, unambiguous, and capable of only one reasonable interpretation. Benefield v. Malone, 112 Ga. App. 408, 410 (2) ( 145 SE2d 732) (1965). We find that the trial court erred by denying summary judgment to the defendants because Lake Dow North plainly and unambiguously waived any claims it might have had. "Competent parties are free to choose, insert, and agree to whatever provisions they desire in a contract . . . unless prohibited by statute or public policy.
Love v. Love, 259 Ga. 423, 424 (1) ( 383 S.E.2d 329) (1989); Davis v. Haupt Bros. Gas Co., 131 Ga. App. 628, 629 (1) ( 206 S.E.2d 598) (1974) ("[N]o consideration is given conclusions . . . .");Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga. App. 737, 741 (1) ( 165 S.E.2d 441) (1968) ("Bare legal conclusions in affidavits create no issue of fact on motion for summary judgment. Benefield v. Malone, 112 Ga. App. 408 (2) ( 145 S.E.2d 732) [1965]; Cooper v. Brock, 117 Ga. App. 501 (3) ( 161 S.E.2d 75) [1968]; Bowen v. Consolidated Mortg. c. Corp., 115 Ga. App. 874 ( 156 S.E.2d 168) [1967]."). Notwithstanding the foregoing, unexplained conflict also exists between the affidavit Mr. Ratterree offered in support of his motion for summary judgment and his earlier deposition testimony, then otherwise of record.
A unilateral contract is an offer in writing which makes promises in consideration for acts of performance which are not only the acceptance, but also the consideration flowing to the party making the offer in writing. See State of Ga. v. U.S. Oil Co., 194 Ga. App. 1, 2 ( 389 S.E.2d 498) (1989); Classic Restorations v. Bean, 155 Ga. App. 694 ( 272 S.E.2d 557) (1980); Weikert v. Logue, 121 Ga. App. 171 ( 173 S.E.2d 268) (1970); Benefield v. Malone, 112 Ga. App. 408 ( 145 S.E.2d 732) (1965); Gettier-Montanye, Inc. v. Davidson Granite Co., 75 Ga. App. 377 ( 43 S.E.2d 716) (1947). When there has been an agreement to pay rent, the relationship of landlord and tenant arises.
However, courts are not at liberty to revise a contract while professing to construe it. Smith v. Standard Oil Co., 227 Ga. 268 (1) ( 180 S.E.2d 691); Stuckey v. Kahn, 140 Ga. App. 602, 606 ( 231 S.E.2d 565). There is no construction required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation. Benefield v. Malone, 112 Ga. App. 408 ( 145 S.E.2d 732). Nor is parol evidence admissible to contradict or construe an unambiguous contract. R. S. Helms, Inc. v. GST Dev. Co., 135 Ga. App. 845 ( 219 S.E.2d 458).
See also Collins v. Gwinnett Bank c. Co., 149 Ga. App. 658 ( 255 S.E.2d 122); Wehle v. Baker, 97 Ga. App. 111, 113 ( 102 S.E.2d 661). Defendant's assertion of no consideration is a bare legal conclusion which creates no factual issue. Benefield v. Malone, 112 Ga. App. 408, 410 (2) ( 145 S.E.2d 732). Judgment affirmed. Banke, C. J., and Benham, J., concur.
Here there were broad conclusions in the affidavit for the city as to plaintiff's "continuous failure to comply" with the contractual terms. Since mere legal conclusions and allegations present no issue of fact on motion for summary judgment, Benefield v. Malone, 112 Ga. App. 408 (2) ( 145 S.E.2d 732) (1965), we need consider only the two specific charges involving plaintiff's alleged noncompliance. Neither alone nor collectively do either rise to the level necessary to warrant termination, i.e., constituting noncompliance, so substantial and fundamental as to defeat the contract's object.