Opinion
40656.
DECIDED APRIL 24, 1964.
Action on lease contract. Fulton Civil Court. Before Judge Wright.
Leiter Leiter, Marvin O'Neal, Jr., Robert Paul Leiter, for plaintiff in error.
Gambrell, Harlan, Russell, Moye Richardson, Edward W. Killorin, Donald O. Clark, John W. Maloof, contra.
Where the pleadings and affidavits in an action based on a written lease show there are no genuine issues of fact, a summary judgment is properly granted.
DECIDED APRIL 24, 1964.
This is a summary judgment case. Paul Jones (plaintiff) entered into a twenty page "Option to Lease Under Private Signature" with Wilson P. Abraham and Mitchell N. Ashy (defendants), April 26, 1962. The subject of the option was a tract of land on Houston Street in Atlanta, the yearly gross rental of which was to be $18,000 and the initial term was fifty years, with two renewal options for an additional forty-nine years. The defendants were to build a motel-hotel costing not less than $1,500,000. On the same day, certain minor amendments were made to the option.
The expiration date of the option was November 22, 1962, which was extended by agreement of all parties to November 29, 1962. On that day, defendants notified the plaintiff in writing of their exercise of the option. Also on the same day, an amendment to the option was executed by Paul Jones and Alpha Investment Co., Inc., containing the following relevant provisions:
"2. Paul Jones hereby leases and demises said land to Alpha Investment Company, Inc. for 99 years from 1st March, 1963."
"4. The rental to be paid for said land is $10,000 per year for the first 10 years and $18,000 per year for the last 89 years of the lease. Said rent is payable in advance on 1st March of each year."
"11. Except as herein specified the terms of an option to lease between Paul Jones and Mitchell N. Ashy and Wilson P. Abraham, as amended, and as transferred to Lessee, shall govern and be effective."
On February 21, 1963, Ashy and Abraham formally executed an assignment of their interest in the lease to Alpha Investment Co., Inc., which assignment was accepted by Alpha and consented to by Paul Jones. The transfer contained the provision that "The assignment of the aforesaid Lease in no way releases Mitchell N. Ashy and Wilson P. Abraham from their liability under this Lease Agreement."
Alpha Investment paid $10,000 rental to Paul Jones on March 1, 1963. Jones subsequently brought this suit in attachment against Ashy and Abraham, residents of Louisiana, seeking to recover an additional $8,000 rental.
Both sides moved for a summary judgment and the defendants' motion was granted. Plaintiff excepts.
The question at issue here must be resolved by an interpretation of the option to lease along with its various amendments. It is well settled that unambiguous contracts are for the court to construe and a motion for summary judgment is a proper method of invoking the court's determination. General Gas Corp. v. Carn, 103 Ga. App. 542 ( 120 S.E.2d 156). In the trial court, both parties took the position that the agreements comprising the total contract were unambiguous and both requested a summary judgment in their favor. Now plaintiff insists that there were various ambiguities that should have been passed on by a jury.
We think the parties were right in the lower court and the agreements are not ambiguous. The key is found in the amendment of November 29, 1962, executed by Paul Jones and Alpha Investment. This amendment clearly shows that the defendant's rights under the option agreement had been transferred to Alpha, that the lease was with Alpha, although defendants were to remain liable, and that the rental was to be $10,000 per year for the first ten years. In addition to these factors, the amendment in direct terms provides that "Except as herein specified the terms of [the April 26, 1962, option] . . . shall govern and be effective." (Emphasis added). This language shows a clear intent by the parties to change the rental from $18,000 to $10,000 per year.
Though designated as an amendment to the option agreement, it sets out the terms of the lease and appears to be the lease agreement.
In their affidavit supporting a motion for summary judgment, defendants explained that Alpha Investment was a corporation formed by them to be a party to the lease and that this was the reason they agreed to continue to be liable. This is a common business practice. Additionally, they set forth that the assignment of their lease interest February 21, 1963, was to accommodate the title company by a formal showing of the previous transfer from defendants to Alpha.
Plaintiff in his affidavit and deposition, insisted that he was "abiding by," "relying on," and "going by" the papers as they stood and did not offer additional evidence. Had plaintiff desired to produce additional matter "the time for a party opposing the motion to present relevant evidence or show satisfactory reasons for the nonproduction is at the time of the hearing on the order to show cause, and if this is not done, it is too late to complain later. King v. Fryer, 107 Ga. App. 715 ( 131 S.E.2d 203); Scales v. Peevy, 103 Ga. App. 42 (2) ( 118 S.E.2d 193); Studstill v. Aetna Cas. c. Co., 101 Ga. App. 766, 768 ( 115 S.E.2d 374)." Planters Rural Tel. Co-op., Inc. v. Chance, 108 Ga. App. 146, 148 ( 132 S.E.2d 90).
The summary judgment was properly granted for the defendants.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.