‘‘Introduce’’ means ‘‘to present to the public for the first time,’’ ‘‘to bring forward for consideration,’’ or ‘‘to provide someone with a beginning knowledge or first experience of something’’; thus

Snipes v. Marcene P. Powell & Assocs., 273 Ga. App. 814, 616 S.E.2d 152 (2005). Because under O.C.G.A. § 13-2-2, contract words are given their exact meaning, the word ‘‘introduced,’’ as used in a real estate commission extension clause, did not require that a broker be the predominant or procuring cause of the sale; rather, it required only that the broker’s actions have at least some minimal causal connection with the sale, or be in the chain of causation leading to the sale. Snipes v. Marcene P. Powell & Assocs., 273 Ga. App. 814, 616 S.E.2d 152 (2005). According to usual signification of the word, an automobile is not a motorcycle. Both are motor-driven vehicles, but not all Construction of Words (Cont’d) motor-driven vehicles are automobiles, nor are all motorcycles. Bullard v. Life & Cas. Ins. Co., 178 Ga. 673, 173 S.E. 855, answer conformed to 49 Ga. App. 27, 174 S.E. 256 (1934). Term bodily injury not ambiguous, as it is term needing no explanation. Cotton States Mut. Ins. Co. v. Crosby, 244 Ga. 456, 260 S.E.2d 860 (1979). Assumption that ‘‘either’’ was intended in technically accurate sense, not as meaning ‘‘both’’. — Although use of ‘‘either’’ to mean ‘‘both’’ is recognized in dictionaries and fairly common in the vernacular, this is not a technically accurate usage which would normally or correctly be employed in a legal document. The court will not assume that the less accurate usage of ‘‘either’’ was intended, but rather that usage which is distinctive and unique to the word. Holcomb v. Word, 239 Ga. 847, 238 S.E.2d 915 (1977). Construction of word ‘‘fit.’’ — For construction of the word ‘‘fit’’ in a lease providing that ‘‘Lessors represent that the premises are in fit condition for use by the Lessees,’’ see McDuffie v. Argroves, 230 Ga. App. 723, 497 S.E.2d 5 (1998). Phrase ‘‘local taxes,’’ as used in contracts which excluded local taxes from the lump sum purchase price for advertising signs, did not include state sales taxes, where the phrase was at best an ambiguous phrase, admitting of no single, reasonable meaning, without resort to construction. Outdoor Displays Welding & Fabrication, Inc. v. United States Enters., Inc., 84 Bankr. 260 (Bankr. S.D. Ga. 1988). If telegram constitutes contract, testimony as to meaning of cipher code words admissible. — If contract consummated by letter or telegram, testimony as to meaning of cipher code words in telegram is admissible. Allen, McIntosh & Co. v. Farmers & Traders Nat’l Bank, 129 Ga. 748, 59 S.E. 813 (1907). Meaning of ‘‘United States standard lint cotton’’ in ambiguous contract, subject to parol explanation. — Meaning of term ‘‘United States standard lint cotton’’ in ambiguous contract is subject to explanation by parol testimony. Mays v. Hankinson & Hagler, 31 Ga. App. 473, 120 S.E. 793 (1923). Meaning of words ‘‘in the Savannah market’’ subject to parol explanation. — Meaning of words, ‘‘in the Savannah market,’’ being in dispute, and ambiguous, it was right to admit parol evidence to explain their true sense as originally used in Savannah. Goodman v. Henderson, 58 Ga. 567 (1877). Tax rebate funds included within ‘‘all funds . . .’’ provision of contract. See Cowen v. Snellgrove, 169 Ga. App. 271, 312 S.E.2d 623 (1983). Promise to pay interest ‘‘per annum’’ is simply a promise to pay at an annual interest rate. This does not obligate the lender to use any particular method of interest computation; nor does it restrict the amount of interest that can be charged to the amount that accrues when interest is calculated daily for 365 days. Kleiner v. First Nat’l Bank, 581 F. Supp. 955 (N.D. Ga. 1984). Term ‘‘sidetrack agreements,’’ although not fully explained in an insurance policy, clearly referred to railroads. Auto-Owners Ins. Co. v. Barnes, 188 Ga. App. 439, 373 S.E.2d 217, cert. denied, 188 Ga. App. 911, 373 S.E.2d 217 (1988). Construction of ‘‘and all renewals thereof’’ in insurance policy. — Within a viatical settlement agreement between an assigned beneficiary and the insured, the phrase in the assignment ‘‘and all renewals thereof’’ entitling the beneficiary to the insured’s group life insurance proceeds and proceeds from renewal policies, did not apply to a subsequent replacement policy the insured obtained as that language clearly expressed the insured’s intent and was not ambiguous. Livoti v. Aycock, 263 Ga. App. 897, 590 S.E.2d 159 (2003). Words ‘‘notwithstanding’’ and ‘‘such as’’ in lease agreement given plain meaning. — A trial court erred in construing a lease amendment to require the tenant to pay additional monthly fees for utilities, because the unambiguous language of the amendment provided for payment of a minimum annual rent plus a percentage of annual gross sales and no other rent charges, notwithstanding the provisions of the original lease. The word ‘‘notwithstanding’’ meant that the terms of the amendment applied in spite of any language in the original lease to the contrary, and the words ‘‘such as’’ late charges did not include utility charges, which were dissimilar to late charges. Record Town, Inc. v. Sugarloaf Mills L.P., 301 Ga. App. 367, 687 S.E.2d 640 (2009). Construction of restrictive covenants. — Because a driveway was a ‘‘structure’’ within the common meaning of that term as well as the meaning of the restrictive covenants, pursuant to O.C.G.A. §§ 13-2-2(2) and 13-2-3, the trial court did not err in finding as a matter of law that a homeowner was required to seek the homeowner association’s approval before resurfacing a driveway; consequently, the trial court properly granted the homeowner association’s motion for an injunction requiring the homeowner to restore the driveway to the driveway’s original condition. Mitchell v. Cambridge Prop. Owners Ass’n, 276 Ga. App. 326, 623 S.E.2d 511 (2005). Partial summary judgment for two owners was affirmed as ‘‘structure’’ was not defined in the restrictive covenants, so there was an ambiguity; using the rules of construction set forth in O.C.G.A. § 13-2-2, the restrictive covenants were construed as a whole. Under the restrictive covenants, a retaining wall was not prohibited within a setback line as: (1) ‘‘structure’’ had various meanings in various contexts; (2) ‘‘structure’’ was used in a limited sense to refer to a house, building, dwelling, or any above-ground or ‘‘erected’’ shelters for people or property; (3) when other improvements to land were addressed such as septic systems, sewage lines, wells, above-ground fuel and water tanks, and construction materials, they were discussed separately and only by their specific names; and (4) given the context, ‘‘structure’’ was not intended to have a broader meaning. Skylake Prop. Owners Ass’n v. Powell, 281 Ga. App. 715, 637 S.E.2d 51 (2006). Trial court properly issued a permanent injunction against a homeowner based on that homeowner’s violation of a restrictive covenant by erecting a shed on the subject property because: (1) the shed was not constructed with the same material and color as the exterior of residence; (2) the structure clearly violated the covenant; and (3) enforcement of the covenant had not been waived. Glisson v. IRHA of Loganville, Inc., 289 Ga. App. 311, 656 S.E.2d 924 (2008). Paragraph (5) of O.C.G.A. § 13-2-2 applied to include insurance coverage for sexual abuse. — Construing the ambiguity of a sexual abuse exclusion provision in an insurance policy against an insurer, the policy was held not to exclude coverage for sexual abuse perpetrated by some children residents of defendant’s shelter facility, such that the trial court erred in granting summary judgment for insurer and in denying summary judgment for defendant on the issues of coverage under the insurance policy. Georgia Baptist Children’s Homes & Family Ministries, Inc. v. Essex Ins. Co., 207 Ga. App. 346, 427 S.E.2d 798, cert. denied, 263 Ga. 441, 435 S.E.2d 445 (1993). Construction of total disability. — After determining that the definition of the term ‘‘total disability’’ in two of an insurer’s disability policies was ambiguous where the term stated only that an insured was totally disabled if the insured was unable to perform the major duties of the insured’s occupation, in accordance with the directive in O.C.G.A. § 13-2-2(2) to give words their ordinary and common meanings, the terms ‘‘duties’’ and ‘‘major’’ were construed to mean at least two duties that were greater in importance than other duties. Thus, the insured was not required to show that the insured was unable to perform all of the major duties of the insured’s occupation to qualify as being totally disabled. Putnal v. Guardian Life Ins. Co. of Am., No. 5:04-CV-130 (HL), 2006 U.S. Dist. LEXIS 70931 (M.D. Ga. Sept. 29, 2006). Terms ‘‘provision of lithotripsy services’’. — Where a doctor, a minority shareholder in a corporation that ultimately had an interest in a partnership that operated to rent a lithotriptor to hospitals, executed a noncompete agreement as to the partnership business incident to one partner’s sale of its partnership interest, it was not necessary to consider parol evidence to adduce the meaning of the term ‘‘provision of lithotripsy services’’ for purposes of the noncompete agreement under O.C.G.A. § 13-2-2(1) because the contractual language was not ambiguous in the context of the dispute as to whether the doctor breached such agreement. West Coast Cambridge, Inc. v. Rice, 262 Ga. App. 106, 584 S.E.2d 696 (2003). Construction of ‘‘in-patient’’ and ‘‘out-patient’’. — Given that the language in an insurance contract providing for catastrophic coverage only extended to inpatient, and not outpatient services, the trial court properly granted summary judgment as to the issue of the insurer’s coverage, as Construction of Words (Cont’d) the hospital bill for which the insured sought payment was for outpatient services. Michna v. Blue Cross & Blue Shield of Ga., Inc., 288 Ga. App. 112, 653 S.E.2d 377 (2007), cert. denied, 2008 Ga. LEXIS 214 (Ga. 2008). Solicitation of offer. — Solicitation and receipt of an offer to purchase is not a legally enforceable offer to sell. Stephens v. Trust for Pub. Land, 479 F. Supp. 2d 1341 (N.D. Ga. 2007). ‘‘Limited warranty’’. — Under O.C.G.A. § 13-2-2(7), preprinted ‘‘limited warranty’’ language on the back of a confirmation had no effect because that language directly contradicted the full warranty language that was typed on the front of the preprinted confirmation form; the court erred when the court relied on this warranty to bar a claim for lost profits or other special damages. Authentic Architectural Millworks, Inc. v. SCM Group USA, Inc., 262 Ga. App. 826, 586 S.E.2d 726 (2003). ‘‘Trade fixture.’’ — Trial court’s finding that a lease permitted a lessee to remove a canopy that was installed for purposes of carrying on the lessee’s trade at the leased premises, was proper under O.C.G.A. § 13-2-2(4) because the trial court’s application of the traditional meaning of the term ‘‘trade fixture’’ was consistent with sections of the lease providing that the lessee was required to surrender all buildings, structures, and improvements and that the lessee was permitted to demolish all improvements and to construct new buildings in place of the demolished ones. Lay Bros., Inc. v. Golden Pantry Food Stores, Inc., 273 Ga. App. 870, 616 S.E.2d 160 (2005). Custom and Usage of Trade Code embodies substance of common law as to custom. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955). Valid usages impliedly part of contract unless not within intent of parties. — General rule is that valid usages concerning subject matter of contract of which parties are chargeable with knowledge are by implication incorporated therein, if contract is subject to interpretation urged and if nothing within it excludes such interpretation as having been within intention of parties. General Forms, Inc. v. Continental Cas. Co., 123 Ga. App. 52, 179 S.E.2d 522 (1970). Ambiguity resolved by custom. — In face of ambiguity of documents comprising agreement of parties, the obligation to pay extra for extra work was of such compelling logic and was of such usual custom in the trade as to be necessarily implied in the contract. Colonial Pipeline Co. v. Robert W. Hunt Co., 164 Ga. App. 91, 296 S.E.2d 633 (1982). Custom may become part of contract by implication notwithstanding integration clause. — Where custom by implication becomes part of contract and does not constitute a parol agreement or undertaking between parties it may be established as part of contract, notwithstanding provision in contract that it contains all conditions and agreements, either oral or written, between parties. Weems v. Des Portes, 47 Ga. App. 546, 171 S.E. 182 (1933). Custom of trade may be shown notwithstanding provision in contract that all conditions and agreements between parties thereto, either oral or written, are contained in contract. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955). Trade usage and custom may be explained by parol proof. — Ambiguities in terms used in written contracts, and their meanings as understood in trade and by contracting parties, may be explained by parol proof of this trade usage and custom. Pace Constr. Corp. v. Houdaille-Duvall-Wright Div., 247 Ga. 367, 276 S.E.2d 568 (1981); Bemco Mattress Co. v. Southeast Bedding Co., 196 Ga. App. 509, 396 S.E.2d 238 (1990). Absence of a definition for ‘‘patio home’’ or ‘‘cluster home’’ in a subdivision’s restrictive covenants created an ambiguity for resolution by the application of the rules of contract construction; parol evidence was properly considered that patio home and cluster home were words used in the trade and did not include town homes or condominiums. Southland Dev. Corp. v. Battle, 272 Ga. App. 211, 612 S.E.2d 12 (2005). Office of custom or usage is to interpret otherwise indeterminate intentions of parties. Citizens & S. Bank v. Union Whse. & Compress Co., 157 Ga. 434, 122 S.E. 327 (1924); American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150 (1938). Office of custom or usage in trade is not to contradict contract, but to explain what would otherwise be inexplicable in meaning and intention of parties, on theory that the parties knew of its existence and contracted with reference to it. Burns Brick Co. v. Adams, 106 Ga. App. 416, 127 S.E.2d 26 (1962). Industry practice cannot be imposed upon unambiguous written terms of contract. — In a suit alleging breach of contract and civil conspiracy brought against insurance company, plaintiffs could not with parol evidence impose upon the unambiguous written terms of the contract, which did not require 30 days’ advance notice of termination, an alleged industry practice of such notice. Wood v. All Am. Assurance Co., 172 Ga. App. 655, 324 S.E.2d 483 (1984). If there is no contract, custom or usage of trade will not make one. — Custom of trade may under certain conditions become by implication part of contract; and also evidence of known and established usage is admissible to aid in construction of contract, as well as to annex incidents. But these provisions by their very terms presuppose existence of contract, and where there is no contract, proof of usage will not make one. Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 167 S.E. 79 (1932). Usage and custom of trade binding if known, certain, uniform, reasonable, and not contrary to law. Citizens & S. Bank v. Union Whse. & Compress Co., 157 Ga. 434, 122 S.E. 327 (1924); American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150 (1938). Alleged usage which leaves some material element to discretion of individual is void for uncertainty; such usage would be void because useless. Citizens & S. Bank v. Union Whse. & Compress Co., 157 Ga. 434, 122 S.E. 327 (1924); American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150 (1938). Loose, variable, or discretionary practice does not arise to dignity of custom so as to control rights of parties to contract. American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150 (1938). Individual habits of dealing do not make universal custom which by implication enters into contract and forms part thereof. Petkas v. Wright Co., 87 Ga. App. 189, 73 S.E.2d 224 (1952). Custom may not be invoked when it contravenes declared law. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955). Custom has no application to nonresidents, as nonresidents could not reasonably be charged with knowledge of custom prevailing in this state. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955). In interpreting usage or custom, same rules apply as pertain to construction of other writings and documents. Citizens & S. Bank v. Union Whse. & Compress Co., 157 Ga. 434, 122 S.E. 327 (1924). Paragraph (3) of O.C.G.A. § 13-2-2 is rule for construction of contracts, not for determining tort liability. — Statute is rule for construction of contracts, not for determining liability in tort actions. Wright v. Concrete Co., 107 Ga. App. 190, 129 S.E.2d 351 (1962). Statute, which sanctions reliance on custom of trade or business universally practiced, is rule for construction of contracts, not for determining liability in tort actions. Smith v. Godfrey, 155 Ga. App. 113, 270 S.E.2d 322 (1980). Custom may be established if not conflicting or inconsistent with written contract. — Rule that custom of business or trade may be binding upon parties to contract when it is of such universal practice as to justify conclusion that it became by implication part of contract, cannot make custom part of contract where alleged custom is inconsistent with expressed provisions of agreement. Shellnut v. Federal Life Ins. Co., 41 Ga. App. 386, 153 S.E. 102 (1930); Penn Mut. Life Ins. Co. v. Blount, 41 Ga. App. 581, 153 S.E. 794 (1930). Custom may be established as part of written contract where not in conflict or inconsistent with any provisions of it. Weems v. Des Portes, 47 Ga. App. 546, 171 S.E. 182 (1933). Custom cannot be used to contradict express terms of contract itself and where language of contract does not exclude by its terms operation of proven universal custom, but is silent on question, custom becomes part of contract. Shippen v. Folsom, 200 Ga. 58, 35 S.E.2d 915 (1945). Custom pleaded by defendant which was inconsistent with and repugnant to express terms of unambiguous contract could not be urged for purpose which would have altered the contract’s provisions. Church v. Custom and Usage of Trade (Cont’d) Trailmobile, Inc., 99 Ga. App. 750, 109 S.E.2d 636 (1959). Custom may not be shown to be a part of an unambiguous contract when it is inconsistent with or contrary to express or necessarily implied terms of contract. Burns Brick Co. v. Adams, 106 Ga. App. 416, 127 S.E.2d 26 (1962). Contention that insurance contract consisted of application, medical report illustrating applicant’s insurability, payment of first month’s premium, plus alleged custom of interim coverage, was at variance with stated law of this state, as application contained stipulation that insurance applied for would not take effect until issued and delivered as custom or usage cannot be set up to vary written unambiguous provisions of contract, terms of which are at variance with alleged custom. Peninsular Life Ins. Co. v. Downard, 99 Ga. App. 509, 109 S.E.2d 279 (1959). General rule is that valid usages concerning subject matter of contract of which parties are chargeable with knowledge are by implication incorporated therein, if contract is subject to interpretation urged and if nothing within it excludes such interpretation as having been within intention of parties. Puritan Mills, Inc. v. Pickering Constr. Co., 152 Ga. App. 309, 262 S.E.2d 586 (1979). Alleged custom inconsistent with express terms of unambiguous contract was not controlling. — Custom pleaded by defendant which was inconsistent with and repugnant to express terms of unambiguous contract could not be urged for purpose which would have altered the contract’s provisions. Church v. Trailmobile, Inc., 99 Ga. App. 750, 109 S.E.2d 636 (1959). Admissibility of trade custom as to terms susceptible of more than one understanding. — While trade custom cannot be used to contradict express contract term, if there is possibility of understanding a term in more than one sense, parol evidence is admissible to show that parties contracted with intention that custom of trade as to such term should apply to their contract. General Forms, Inc. v. Continental Cas. Co., 123 Ga. App. 52, 179 S.E.2d 522 (1970). Custom or usage of trade inadmissible to contradict terms of written and unambiguous contract. Hubert v. Luden’s, Inc., 92 Ga. App. 427, 88 S.E.2d 481 (1955). If intent and meaning of parties are clear, evidence of usage to contrary is irrelevant and unavailing. Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 167 S.E. 79 (1932). Admissibility of established usage to annex incidents. — Evidence of known and established usage is admissible to aid in construction of contracts as well as to annex incidents. Puritan Mills, Inc. v. Pickering Constr. Co., 152 Ga. App. 309, 262 S.E.2d 586 (1979). Custom can only be proved by word of mouth from those engaged in the business, and evidence thereof is necessarily in parol. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955). Qualified experts in a trade or industry may testify as to its customs and usages and as to meaning of words used in trade between persons dealing therein. Taber Mill v. Southern Brighton Mills, 49 Ga. App. 390, 175 S.E. 665 (1934). Statutory requisite as to content of insurance contract, not subject to obliteration by custom. — While insurance companies are bound to know customs of places where they transact business, and are assumed to have made their contracts with reference thereto and, while custom of any business or trade is binding between contracting parties when it is of such universal practice as to justify conclusion that it became by implication part of contract, statutory requisite that contracts of insurance be in a writing or writings, setting forth all material elements of a contract of insurance before such contract is enforcible, may not be obliterated by custom. Peninsular Life Ins. Co. v. Downard, 99 Ga. App. 509, 109 S.E.2d 279 (1959). When contract silent regarding weight of cotton bales, evidence of trade meaning of term admissible. J. T. Stewart & Son v. Cook, 118 Ga. 541, 45 S.E. 398 (1903). Cotton trade custom that bales should average ‘‘around’’ certain amount, not void for uncertainty. — Custom in cotton trade that bales of cotton should average ‘‘around’’ or ‘‘about’’ or ‘‘in the neighborhood of 500 pounds per bale’’ is not void for uncertainty. Citizens & S. Bank v. Union Whse. & Compress Co., 157 Ga. 434, 122 S.E. 327 (1924). Construction of words ‘‘timber suitable for turpentine purposes’’ as to size of timber intended. — Words ‘‘timber suitable for turpentine purposes,’’ as used in timber lease are not ambiguous and mean any timber of whatever size that is ordinarily used for turpentine purposes; size being determined by custom, if one is shown to be applicable. The same thing may be expressed in different words, with respect to size, by defining phrase as meaning timber of any size that may consistently with ordinary prudence be used for such purposes; this being in law the true criterion, whether shown by proof of custom or other proof. Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783 (1947). Construction of ‘‘square feet.’’ — Trial court properly refused to direct a verdict for a seller in a breach of contract claim, alleging that a developer and the companies failed to abide by restrictions in the contract between the parties requiring that homes built by the developer be no larger than a certain amount of square feet; parol evidence that the term ‘‘square feet’’ was commonly used and understood in the real estate industry to refer to heated square feet was properly admitted under O.C.G.A. § 13-2-2(2) as an explanation of trade usage and custom and showed that the homes in question were within the square footage limitation in the contract. Brock v. King, 279 Ga. App. 335, 629 S.E.2d 829 (2006), aff ’d, 282 Ga. 56, 646 S.E.2d 206 (2007). Construction of ‘‘downgrades’’. — Because a participation agreement required the originating bank to notify the participating bank when it changed the credit ratings on a construction loan, which included material downgrades in the originating bank’s relationship with the borrower, and because the term ‘‘downgrades’’ was not defined in the agreement, the plain meaning of the term, as used in the banking industry, required the originating bank to advise the participating bank of its risk rating changes for the borrower. Sun Am. Bank v. Fairfield Fin. Servs., No. 5:08-cv-341(CAR), 2010 U.S. Dist. LEXIS 11004 (M.D. Ga. Feb. 9, 2010). Instruction on section improper without evidence. — Trial court errs in charging the provisions of paragraph (3) of O.C.G.A. § 13-2-2, regarding the effect of certain business or trade customs upon contractual obligations, if there is no evidence of any such custom or practice in the case. Amax, Inc. v. Fletcher, 166 Ga. App. 789, 305 S.E.2d 601 (1983) (holding error harmless). Preference for Upholding Contracts Contract as a whole to be considered in determining construction to be given any part. Continental Cas. Co. v. Continental Rent-A-Car of Ga., Inc., 349 F. Supp. 666 (N.D. Ga.), aff ’d, 468 F.2d 950 (5th Cir. 1972). If the construction of any part of contract is doubtful, understanding of the contract’s meaning is to be sought in light afforded by meaning of all other parts of instrument. Even if one part of contract is somewhat repugnant to remaining portions, true meaning of contract as whole is to be ascertained and enforced. Federal Rubber Co. v. King, 12 Ga. App. 261, 76 S.E. 1083 (1913). Lease agreement barring removal of improvements. — Pursuant to O.C.G.A. § 13-2-2-(4), the court of appeals was bound to uphold a provision of a lease agreement between the parties barring the removal of certain improvements to the leasehold by the lessee originally installed by the lessor’s predecessor in interest, despite a request by the lessor that it be removed, without affirmative facts showing that the improvements were not likely to be usable by a successor tenant, and the lessor failed to meet the lessor’s burden of showing that the improvements were not likely to be used in the future. Ranwal Props., LLC v. John H. Harland Co., 285 Ga. App. 532, 646 S.E.2d 730 (2007). Rendering portion meaningless avoided. — A court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless. Board of Regents v. A.B. & E., Inc., 182 Ga. App. 671, 357 S.E.2d 100 (1987). Contracts are to be construed so as to uphold and give effect to the agreement as lawful and not to render portions of the agreement meaningless; to construe the settlement agreement and promissory note as assigning an executor’s commission would have risked making the settlement agreement void ab initio under O.C.G.A. § 44-12-24, and the ambiguity was resolved by holding that the executor did not waive the executor’s right to a commission. In re Estate of Sims, 259 Ga. App. 786, 578 S.E.2d 498 (2003). Preference for Upholding Contracts (Cont’d) Trial court erred in holding a spouse in contempt of court and ordering the spouse to pay a tax lien on marital property from the spouse’s proceeds from the sale of the property as the evidence did not show that the spouse willfully violated the divorce judgment, which evidenced an intent to share the burden equally. Therefore, requiring the spouse to bear the entire burden of the tax lien rendered certain provisions of the divorce agreement meaningless. Knott v. Knott, 277 Ga. 380, 589 S.E.2d 99 (2003). Because a lienholder signed a subordination agreement that expressly stated that it subordinated a certain security deed held by the lienholder to the interests of another, the rules of contract construction in O.C.G.A. § 13-2-2(4) required that ‘‘or otherwise’’ language in the agreement be given effect, so another security deed the lienholder held regarding the same property was also subject to the subordination agreement, even though it was not specifically mentioned in the agreement. VATACS Group, Inc. v. HomeSide Lending, Inc., 276 Ga. App. 386, 623 S.E.2d 534 (2005). Where an insurance company sought contribution from a power line construction company, the insurance company’s reading of the contract between the construction company and the insured, a power company, was contrary to O.C.G.A. § 13-2-2(4) that a contract should be construed, if possible, so as not to render any of its provisions meaningless. Under the terms of the contract that governed the construction of the power line that killed the deceased, the construction company’s liability terminated when possession and control of the line were turned over to the power company. Federated Rural Elec. Ins. Exch. v. R.D. Moody & Assocs., No. 07-13345, 2008 U.S. App. LEXIS 13960 (11th Cir. June 27, 2008) (Unpublished). In event of conflict between contract provisions, first provision prevails. Wilner’s, Inc. v. Fine, 153 Ga. App. 591, 266 S.E.2d 278 (1980). Interpretation of conflicting clauses. — If two clauses be utterly inconsistent, former must prevail, but intentions of parties from whole instrument should, if possible, be ascertained and carried into effect. The doctrine of repugnant clauses is not favored. Maxwell v. Hoppie, 70 Ga. 152 (1883). Where two clauses are so repugnant that they cannot stand together, the first will be retained and the second rejected, unless inconsistency is so great as to void instrument for uncertainty. Drake v. Wayne, 52 Ga. App. 654, 184 S.E. 339 (1936). If two clauses of contract are so totally repugnant to each other that the clauses cannot stand together, first shall be received and latter rejected. Waxelbaum v. Carroll, 58 Ga. App. 771, 199 S.E. 858 (1938). Meaning to be given to all manifestations of intention by parties. — The law requires that in interpreting a contract, the court gives a reasonable, lawful, and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect. Whitmire v. Colwell, 159 Ga. App. 682, 285 S.E.2d 28 (1981). Contract to be construed as whole and no part discarded if avoidable. — It is well settled and salutary rule of construction which requires not only that every contract shall be construed in pari materia, but that no portion shall be discarded if it can be avoided. Candler Inv. Co. v. Cox, 4 Ga. App. 763, 62 S.E. 479 (1908). In determining the ownership of certain intellectual property developed by a claimant while in a debtor’s employ, pursuant to the applicable rules of contract construction under O.C.G.A. § 13-2-2, a nondisclosure agreement executed by the claimant as a condition of employment rendered ownership of any development to the debtor; the fact that the debtor failed to pay part of the claimant’s salary did not render the assignment clause unenforceable because the contract did not provide for rescission and the claimant had an adequate remedy at law for the unpaid salary. Ponder v. Apyron Techs., Inc. (In re Apyron Techs., Inc.), No. 02-74350-JEM, 2005 Bankr. LEXIS 569 (Bankr. N.D. Ga. Mar. 17, 2005). All terms of contract, as far as practicable, must be given full effect. Wellborn v. Estes, 70 Ga. 390 (1883); Myers v. Phillip Carey Co., 17 Ga. App. 535, 87 S.E. 825 (1916). When terms of contract permit the contract should be given construction which will advance the contract’s beneficial purpose. MacDougald Constr. Co. v. State Hwy. Dep’t, 59 Ga. App. 708, 2 S.E.2d 197, rev’d on other grounds, 189 Ga. 490, 6 S.E.2d 570 (1939); Consolidated Freightways Corp. v. Williams, 139 Ga. App. 302, 228 S.E.2d 230 (1976). Law leans against destruction of contracts on ground of uncertainty, and contract will not be declared void on that ground, unless after reading the contract and interpreting the contract in light of circumstances under which the contract was made, and supplying or rejecting words necessary to carry into effect reasonable intention of the parties, their intention cannot be fairly collected and effectuated. Leffler Co. v. Dickerson, 1 Ga. App. 63, 57 S.E. 911 (1907). If possible, courts construe contracts as binding upon both parties. — When possible without contravening any rule of law, courts will construe contract as binding on both parties, where, from language of contract, conduct of parties, and all attendant circumstances, it appears that intention of the parties was that both should be bound by sale, and substantial justice requires that contract be given effect. Good Rds. Mach. Co. v. Neal & Son, 21 Ga. App. 160, 93 S.E. 1018 (1917). Contracts to be construed, if possible, to incur lawful obligations. — It is not to be presumed that people intend to violate the law, and language of their undertakings must, if possible, be so construed as to make obligation one which law would recognize as valid. Lie-Nielsen v. Tuxedo Plumbing & Heating Co., 149 Ga. App. 502, 254 S.E.2d 729 (1979), rev’d on other grounds, 245 Ga. 27, 262 S.E.2d 794 (1980). If there is doubt as to whether purpose contract seeks to effectuate is legal or illegal, it will be construed as made for legal, rather than illegal purpose. Virginia Bridge Iron Co. v. Crafts, 2 Ga. App. 126, 58 S.E. 322 (1907); Potts v. Riddle, 5 Ga. App. 378, 63 S.E. 253 (1908); Luke v. Livingston, 9 Ga. App. 116, 70 S.E. 596 (1911); Palmer Brick Co. v. Woodward, 138 Ga. 289, 75 S.E. 480 (1912). Forfeitures not favored in the law, and where there is legitimately a choice of constructions, that which will save contract is rather to be preferred than that which will work forfeiture. Aetna Ins. Co. v. Lipsitz, 130 Ga. 170, 60 S.E. 531 (1908). Ambiguous agreement capable of interpretation which will validate the agreement will be so interpreted. Moore v. Hughey, 133 Ga. App. 901, 212 S.E.2d 503 (1975). Instrument construable as valid deed of gift or invalid testamentary disposition, construed as former. — Instrument, in form of a deed of gift, and will attested as such, but not legally attested as a will, so that it will wholly fail of effect if construed to be testamentary in its character, should, if very doubtful in its terms with reference to the time of vesting estate, be classed as deed and not as will. Dismukes v. Parrott, 56 Ga. 513 (1876). Court will not give validating construction to instrument which would require changing maturity date completely. — Courts will not apply construction to loan contract to give effect to interpretation that would validate instrument rather than void the contract if such interpretation would require court to change maturity date in month, day, and year. Sellers v. Alco Fin., Inc., 130 Ga. App. 769, 204 S.E.2d 478 (1974). Title cannot be used to explain or vary unambiguous language in body of contract. — A title, not being in truth part of article, cannot be used to throw light on or to vary unambiguous language of body of contract. Suggs v. Brotherhood of Locomotive Firemen & Enginemen, 106 Ga. App. 563, 127 S.E.2d 827 (1962). Contract generally not construed as giving debtor right to destroy it simply by refusing compliance. — Law will not construe contract to give the debtor the right to destroy it by simple refusal to comply with it, unless terms of contract are so clear and unambiguous as to make irresistible the conclusion that no other result could possibly be reached, and that such was intention of parties. Finlay v. Ludden & Bates S. Music House, 105 Ga. 264, 31 S.E. 180 (1898); Milledgeville Cotton Co. v. Cary, 9 Ga. App. 391, 71 S.E. 503 (1911); Haag v. Rogers, 9 Ga. App. 650, 72 S.E. 46 (1911). Construing contract as whole, lender afforded status of mortgagee, not merely loss payee. — See Business Dev. Corp. v. Hartford Fire Ins. Co., 747 F.2d 628 (11th Cir. 1984). Construction Against Party Executing Instrument Construction of contract is generally to be most strongly against party undertaking obligation. Shiflett v. Anchor Rome Mills, Inc., 78 Ga. App. 428, 50 S.E.2d 853 (1948). Construction against party with obligation. — If construction of contract is doubtful, that which goes most strongly against party executing instrument or undertaking obligation is generally to be preferred. Finlay v. Ludden & Bates S. Music House, 105 Ga. 264, 31 S.E. 180 (1898); Small Co. v. Claxton, 1 Ga. App. 83, 57 S.E. 977 (1907); Candler Inv. Co. v. Cox, 4 Ga. App. 763, 62 S.E. 479 (1908); Dewey v. Denson, 31 Ga. App. 352, 120 S.E. 805 (1923); Bridges v. Home Guano Co., 33 Ga. App. 305, 125 S.E. 872 (1924). When construction necessary, contract to be construed most strongly against party who formulated the contract. Western Contracting Corp. v. State Hwy. Dep’t, 125 Ga. App. 376, 187 S.E.2d 690 (1972). Ambiguous terms of contract are to be interpreted against party which drafted the terms. C.A. May Marine Supply Co. v. Brunswick Corp., 557 F.2d 1163 (5th Cir. 1977). Court required to construe ambiguous contract against one who made the contract. Float-Away Door Co. v. Continental Cas. Co., 372 F.2d 701 (5th Cir. 1966), cert. denied, 389 U.S. 823, 88 S. Ct. 58, 19 L. Ed. 2d 76 (1967). Paragraph (5) of O.C.G.A. § 13-2-2 inapplicable to contract prepared by one undertaking no obligation under it. — Statute has no application when contract provides for obligation payable to one who prepares contract and who does not execute the contract or undertake any obligation in the contract. Moorefield v. Fidelity Mut. Life Ins. Co., 135 Ga. 186, 69 S.E. 119 (1910). Utilization of paragraphs (4) and (5) of O.C.G.A. § 13-2-2 together in construing contract. — While lease contracts, like other contracts, where construction is doubtful, must be construed against party drawing and executing the lease contracts, nevertheless, a contract should not be torn apart and construed in pieces, but the court should look to the entire instrument and so construe the contract as to reconcile the contract’s different parts and reject construction which leads to contradiction, in order to ascertain true intention of parties, which is real purpose of judicial construction of contracts. Sachs v. Jones, 83 Ga. App. 441, 63 S.E.2d 685 (1951). In ascertaining intent, that construction will be favored which gives meaning and effect to all terms of contract over that which nullifies and renders meaningless part of language therein contained, and in cases of doubt, contract will be construed most strongly against one who prepared the contract. Brooke v. Phillips Petro. Co., 113 Ga. App. 742, 149 S.E.2d 511 (1966). Author of ambiguous contract bears burden of explanation if seeking favorable construction. — Party who wrote contract and was author of ambiguity has burden of explaining the ambiguity when the author seeks to take benefit of construction favorable to the author; and if the author does not clear up meaning beyond doubt, doubt must be given against the author. Hill v. John P. King Mfg. Co., 79 Ga. 105, 3 S.E. 445 (1887). Paragraph (5) of O.C.G.A. § 13-2-2 to be followed by federal courts as rule of decision. — Paragraph (5) is common law, but nonetheless a statute of Georgia which, together with construction of it by state courts, is to be followed in federal courts as rule of decision. Davis v. Jefferson Std. Life Ins. Co., 73 F.2d 330 (5th Cir. 1934), cert. denied, 294 U.S. 706, 55 S. Ct. 352, 79 L. Ed. 1241 (1935). Ambiguity in letter should be construed most strongly against author. Stewart v. Finance Co., 49 Ga. App. 462, 176 S.E. 73 (1934). Construction against party drafting instrument. — An omnibus agreement between the Chapter 11 debtor and the debtor’s former officer before confirmation of the debtor’s plan of reorganization sufficed as an informal proof of claim because it was contemplated in the plan, was critical to confirmation, and placed the debtor on notice of the officer’s claim, and alternatively, under O.C.G.A. § 13-2-2(5), any ambiguity as to whether the debtor intended to waive the officer’s filing of a proof of claim or any conflict between the terms of the omnibus agreement and the plan was resolved against the debtor’s successor company, whose predecessor was the entity under whose direction the plan was written. In re First Am. Health Care of Ga., Inc., 288 Bankr. 598 (Bankr. S.D. Ga. 2002). Language in a contract between a contractor and a county was construed against the county because the county was the drafter of the contract. Yates Paving & Grading Co. v. Bryan County, 265 Ga. App. 578, 594 S.E.2d 756 (2004). Contracts must be construed against the party drawing and executing the contract, pursuant to O.C.G.A. § 13-2-2(5); nevertheless, a contract should not be torn apart and construed in pieces; instead, the court should look to the entire instrument and so construe the contract as to reconcile the contract’s different parts and reject construction which leads to contradiction. Snipes v. Marcene P. Powell & Assocs., 273 Ga. App. 814, 616 S.E.2d 152 (2005). Because a participation agreement required the originating bank to notify the participating bank when it changed the credit ratings on a construction loan, which included material downgrades in the originating bank’s relationship with the borrower, and because the term ‘‘downgrades’’ was ambiguous, the ambiguity was construed against the originating bank, which had drafted the agreement. Sun Am. Bank v. Fairfield Fin. Servs., No. 5:08-cv-341(CAR), 2010 U.S. Dist. LEXIS 11004 (M.D. Ga. Feb. 9, 2010). Ambiguous terms of suretyship or guaranty contract construed most strongly against maker of contract. Polk v. Slaton, 54 Ga. App. 328, 187 S.E. 846 (1936). Uncertainty or ambiguity in lease construed in lessee’s favor. — If there is life uncertainty or even ambiguity in a lease, it is lessee and not lessor who is to be favored, because lessor had power of stipulating in the lessor’s own favor, though the lessor may have neglected to do so. Farm Supply Co. v. Cook, 116 Ga. App. 814, 159 S.E.2d 128 (1967). If the language in a franchise agreement is uncertain and ambiguous, every rule of contract interpretation, landlord-tenant law, and summary judgment procedure requires a court to interpret the agreement in favor of the lessee and against the lessor who prepared the contract language. Simmerman v. DOT, 167 Ga. App. 383, 307 S.E.2d 4 (1983). After a landlord undertook the obligation under the lease to rebuild and repair the premises after destruction by fire, an interpretation of the extent of its duties should be made favoring the recipient, the tenant. Promenade Assocs. v. Finish Line, Inc., 194 Ga. App. 741, 391 S.E.2d 714 (1990). Language of note given by tenant for rent must be taken most strongly against tenant. McBurney v. McIntyre, 38 Ga. 261 (1868). Ambiguity in lease with option to purchase. — An ambiguity in a lease of real property with an option to purchase was construed to mean that a ‘‘down payment’’ made at the time of execution of the lease was not intended as consideration for the option to purchase, but was to be applied as a down payment on the real property itself, upon the purchasers’ exercise of the option. Smith v. Persichetti, 245 Ga. App. 357, 537 S.E.2d 441 (2000). Insurance contracts to be strictly construed against insurer. Lee v. Fidelity & Cas. Co., 567 F.2d 1340 (5th Cir. 1978). Insurance policies are prepared and proposed by insurers; and, when such contract is capable of being construed in two ways, that interpretation must be placed upon the contract which is most favorable to insured. Especially is this true where construction insisted upon by company would work forfeiture of policy, while other will preserve obligations of both company and insured. State Mut. Life Ins. Co. v. Forrest, 19 Ga. App. 296, 91 S.E. 428 (1917), see also Massachusetts Benefit Life Ass’n v. Robinson, 104 Ga. 256, 30 S.E. 918, 42 L.R.A. 261 (1898); Mutual Life Ins. Co. v. Durden, 9 Ga. App. 767, 72 S.E. 295 (1911). If insurance policy is so drawn as to require interpretation, and to be fairly susceptible of two different constructions, the one will be adopted that is most favorable to insured. American Cas. Co. v. Callaway, 75 Ga. App. 799, 44 S.E.2d 400 (1947). If any doubt should exist in regard to construction of contract of insurance, doubt should be resolved in favor of insured, and policy should be liberally construed in favor of validity of contract and against insurance company. American Cas. Co. v. Callaway, 75 Ga. App. 799, 44 S.E.2d 400 (1947). In construing insurance contracts, any exception in policy of insurance altering terms of general liability is to be taken and construed most strongly against insurer. American Cas. Co. v. Callaway, 75 Ga. App. 799, 44 S.E.2d 400 (1947). Construction Against Party Executing Instrument (Cont’d) If language is ambiguous in an insurance policy, the language must be construed in a light favorable to the insured. Nationwide Mut. Fire Ins. Co. v. Tomlin, 181 Ga. App. 413, 352 S.E.2d 612 (1986); Claussen v. Aetna Cas. & Sur. Co., 259 Ga. 333, 380 S.E.2d 686 (1989); Bituminous Cas. Corp. v. Advanced Adhesive Tech., Inc., 73 F.3d 335 (11th Cir. 1996). Any exclusion sought to be invoked by the insurer will be liberally construed in favor of the insured and strictly construed against the insurer unless it is clear and unequivocal. First Ga. Ins. Co. v. Goodrum, 187 Ga. App. 314, 370 S.E.2d 162 (1988). Since the language on the first page of an insurance contract could be construed to provide accidental death benefits of $15,000 and conflicted with a later provision providing for only $10,000, the trial court erred when the court allowed the provision most favorable to the insurance company to control. Cole v. Life Ins. Co., 236 Ga. App. 229, 511 S.E.2d 596 (1999). Policy provision regarding the provision of liability coverage for a person ‘‘Using a vehicle without a reasonable belief that the person is entitled to do so’’ was ambiguous because it is susceptible of three logical and reasonable interpretations and, therefore, adoption of the interpretation least favorable to the insurer was required. Georgia Farm Bureau Mut. Ins. Co. v. John Deere Ins. Co., 244 Ga. App. 546, 536 S.E.2d 258 (2000). Insurance policy is to be construed most strongly against insurance company only in event meaning is doubtful or ambiguous, and contract is reasonably susceptible to meaning arrived at by construction against company. American Aviation & Gen. Ins. Co. v. Georgia Telco Credit Union, 223 F.2d 206 (5th Cir. 1955). It is cardinal principle of insurance law that policy of insurance is to be construed liberally in favor of insured and strictly as against insurer. Continental Cas. Co. v. Robertson, 245 F.2d 604 (5th Cir. 1957). When terms of policy are not clear and unambiguous, insurance policy to be construed liberally in favor of insured. Float-Away Door Co. v. Continental Cas. Co., 13-2-2 372 F.2d 701 (5th Cir. 1966), cert. denied, 389 U.S. 823, 88 S. Ct. 58, 19 L. Ed. 2d 76 (1967). When policy is ambiguous as to which parties were to be named insured, such ambiguity must be construed most strongly against insurer. Greenbriar Shopping Ctr., Inc. v. Lorne Co., 310 F. Supp. 303 (N.D. Ga. 1969), aff ’d, 424 F.2d 544 (5th Cir. 1970). Any lack of clarity or ambiguity in insurance policy is considered responsibility of insurance company, for it is company that drafts policies and must be required to draft clearly. Ranger Ins. Co. v. Culberson, 454 F.2d 857 (5th Cir. 1971), cert. denied, 407 U.S. 916, 92 S. Ct. 2440, 32 L. Ed. 2d 691 (1972). After determining that the definition of the term ‘‘total disability’’ in two of an insurer’s disability policies was ambiguous where the term stated only that an insured was totally disabled if the insured was unable to perform the major duties of the insured’s occupation, in accordance with the directive in O.C.G.A. § 13-2-2(5), the term ‘‘total disability’’ was construed against the insurer, such that the insured was not required to show that the insured was unable to perform all of the major duties of the insured’s occupation to qualify as being totally disabled. Putnal v. Guardian Life Ins. Co. of Am., No. 5:04-CV-130 (HL), 2006 U.S. Dist. LEXIS 70931 (M.D. Ga. Sept. 29, 2006). Ambiguous insurance clause construed against drafter. — If an insurance clause is ambiguous as to coverage, the clause has to be most strongly construed against the party drafting the clause. Giles v. National Union Fire Ins. Co., 578 F. Supp. 376 (M.D. Ga. 1984). Paragraph (5) of O.C.G.A. § 13-2-2 applied to insurance policies so as to preserve company’s and insured’s obligations. — Insurance policies are prepared and proposed by insurers; therefore, if insurance contract is capable of being construed in two ways, that interpretation must be placed upon the contract which is most favorable to the insured. This rule applies where construction insisted upon by company would work forfeiture of policy, while other will preserve obligations of both company and insured. Peachtree Roxboro Corp. v. U.S. Cas. Co., 101 Ga. App. 340, 114 S.E.2d 49 (1960). Ambiguity in settlement agreement. — Settlement provision between the decedent and his former wife, regarding whether or not decedent’s estate was liable only for those medical expenses for which Medicare provided partial payment or reimbursement, is ambiguous, thereby requiring the court to interpret the contract against the decedent. Franklin v. Franklin, 262 Ga. 218, 416 S.E.2d 503 (1992). Agreements by joint venture construed against drafter’s interest. — Under O.C.G.A. § 13-2-2(5), an agreement drafted by a joint venture must be construed most strongly against its interests. The application of the rules of construction require a finding that there was no waiver of the executor’s commissions; that the executor was entitled to collect the commissions prior to any payment of net proceeds to the joint venture; that the net proceeds of any recovery of the judgment against another party remained an asset of the estate, with sufficient sums limitedly assigned as security for payment to satisfy the promissory note and with a priority of payment of this debt; and that the balance of the net proceeds remaining after payment of the balance and interest on the promissory note was an asset of the estate. In re Estate of Sims, 259 Ga. App. 786, 578 S.E.2d 498 (2003). When security deed note does not provide for automatic acceleration of indebtedness in the event of default nor does it provide for waiver of notice of such acceleration, but when the deed appears to contain such a waiver of notice of acceleration, construing the documents most strongly against the creditor as drafter thereof, in the event of default, there is no automatic acceleration of the indebtedness nor is there a waiver of notice of such acceleration. First Fed. Sav. & Loan Ass’n v. Standard Bldg. Assocs., 85 Bankr. 644 (Bankr. N.D. Ga. 1988). Grammatical Construction Effectuation of intent may require transposition of words and sentences and ignoring of minor clauses. McVay v. Anderson, 221 Ga. 381, 144 S.E.2d 741 (1965). Court may supply words ‘‘per annum’’ after interest stipulation in note. — Court may supply words per annum after words ‘‘with interest at 8%,’’ appearing on note, in exercise of the court’s duty of construing contract. Brooks v. Boyd, 1 Ga. App. 65, 57 S.E. 1093 (1907). Punctuation of instrument may be considered when meaning is doubtful, but it cannot control if meaning otherwise plainly appears. Bridges v. Home Guano Co., 33 Ga. App. 305, 125 S.E. 872 (1924). Words control punctuation marks. — Punctuation is no part of the English language, and is a most fallible guide by which to interpret a writing. Words control punctuation marks, and not punctuation marks the words. Bridges v. Home Guano Co., 33 Ga. App. 305, 125 S.E. 872 (1924). Court may insert proper punctuation marks in construing contract. — In order to arrive at meaning of parties, proper punctuation marks may be inserted by court in construing instrument. Bridges v. Home Guano Co., 33 Ga. App. 305, 125 S.E. 872 (1924). Preference for Written over Printed Matter Written provisions in contract will prevail over printed matter when the provisions conflict. Batson-Cook Co. v. Poteat, 147 Ga. App. 506, 249 S.E.2d 319 (1978); Fort Oglethorpe Assocs. II v. Hails Constr. Co., 196 Ga. App. 663, 396 S.E.2d 585 (1990). When interpreting any conflict in a contract, the handwritten portion prevails over the printed portion if the provisions cannot be reconciled. Lester v. Crooms, Inc., 157 Ga. App. 377, 277 S.E.2d 751 (1981). Written words control if in conflict with mere figures. Bryant v. Georgia Fertilizer & Oil Co., 13 Ga. App. 448, 79 S.E. 236 (1913). Words written with pen and ink are entitled to more consideration than printed words. Hodsdon v. Whitworth, 153 Ga. App. 783, 266 S.E.2d 561 (1980). Handwritten limiting phraseology inserted after printed and typed material is worthy of special consideration. Sims v. Bryan, 140 Ga. App. 69, 230 S.E.2d 39 (1976). Provisions specially inserted by parties are to take precedence over printed provisions of contract form. Atlanta Baggage & Cab Co. v. Loftin, 88 Ga. App. 98, 76 S.E.2d 92 (1953). Typewritten provision must govern over conflicting printed one. Aetna Life & Cas. Co. v. Charles S. Martin Distrib. Co., 120 Ga. App. 133, 169 S.E.2d 695 (1969); Quinlan v. Bell, 189 Ga. App. 8, 374 S.E.2d 823 (1988). Generally, typewritten words of contract are entitled to more consideration than Preference for Written over Printed Matter (Cont’d) printed part. Hodsdon v. Whitworth, 153 Ga. App. 783, 266 S.E.2d 561 (1980). Although typewritten words are generally entitled to more consideration than pre-printed items, that principle applies when a conflict exists between the specially-inserted provisions and the printed form, and in the absence of any conflict between the form and inserted provisions in the deed, the pre-printed language cannot be ignored, ‘‘boilerplate’’ arguments notwithstanding. Safeco Title Ins. Co. v. Citizens & S. Nat’l Bank, 190 Ga. App. 809, 380 S.E.2d 477 (1989); Patellis v. 100 Galleria Parkway Assocs., 214 Ga. App. 154, 447 S.E.2d 113 (1994). Because the contract was printed, the typewritten portions of the contract prevailed over the printed language. Asian Square Partners, L.P. v. Cuong Quynh Ly, 238 Ga. App. 165, 518 S.E.2d 166 (1999). Words not integral to contract. — If printed matter forming part of contract must yield to written terms inconsistent with words printed, a fortiori mere printed statement in letterhead, which does not form integral part of contract at all, cannot override or modify distinct terms of contract with which it conflicts. Augusta Factory v. Mente & Co., 132 Ga. 503, 64 S.E. 553 (1909). Clause written upon face of contract, inconsistent with one printed upon back, generally accepted as expressing intention of parties, rather than inconsistent clause printed upon back. Surles v. Milikin, 97 Ga. 485, 25 S.E. 322 (1895); Caddick Milling Co. v. Moultrie Grocery Co., 22 Ga. App. 524, 96 S.E. 583 (1918). Parties’ intent is paramount consideration and preservation of whole contract preferred. — While it is well settled that when contract is partly written and partly printed, written portion is entitled to most consideration and if printed portions of contract cannot be reconciled with written portions, latter prevail, still cardinal rule of construction is to ascertain intention of parties, and construction which will uphold contract in whole and in every part is to be preferred, and whole contract should be looked to in arriving at construction of any part. Capital Wall Paper Co. v. Callan Court Co., 38 Ga. App. 428, 144 S.E. 135 (1928). Written addition to a settlement agreement did not control where the printed major portion thereof was tailored to list the names of the parties to be released and the specific incident for which the release was to apply. Campos v. Williams, 217 Ga. App. 296, 457 S.E.2d 243 (1995). When Time Is of the Essence For time to be of essence, it should clearly appear that such was intent; as, for example, by provision that agreement shall be void unless act named be completed by certain day, or by other equivalent expression. Ellis v. Bryant, 120 Ga. 890, 48 S.E. 352 (1904). In a suit by a buyer against a seller for breach of a real property sales contract, it was error to find that time was of the essence under O.C.G.A. § 13-2-2; the contract did not contain such a provision, and the parties’ conduct of extending the closing date after the designated date passed did not show that time was of the essence. Peachstate Developers, LLC v. Greyfield Res., Inc., 284 Ga. App. 501, 644 S.E.2d 324 (2007). Time is of essence where expressly provided or where necessarily so from circumstances. — Time is of essence of contract when parties have expressly so treated it, or when it is necessarily so from nature and circumstances of contract. Henry Cotton Mills v. Shoenig & Co., 33 Ga. App. 467, 127 S.E. 238 (1925). Enforcement of commercial lease. — In a lessor’s action to enforce the provisions of a commercial lease pursuant to O.C.G.A. § 13-1-11, because a lessee’s predecessor-in-interest failed to strictly comply with a cancellation option in the lease, and time was of the essence, the trial court erred in ruling otherwise, resulting in an expiration of the option due to the failure to timely exercise the option; thus, on remand the lessor was entitled to summary judgment on the lessor’s possession claim and to the past rent due under the lease for the term sought. Piedmont Ctr. 15, LLC v. Aquent, Inc., 286 Ga. App. 673, 649 S.E.2d 733 (2007), cert. denied, 2007 Ga. LEXIS 749 (Ga. 2007). Time is of essence of contract where nature of contract indicates such intent of parties. Traylor, Spencer & Co. v. Brimbery, 2 Ga. App. 84, 58 S.E. 371 (1907). When time is of essence of contract, it may be waived; and when contract is not treated as at an end, but there is insistence as to performance on one side after date of maturity, and part performance accepted on the other, this amounts to a waiver. King v. Lipsey, 142 Ga. 832, 83 S.E. 957 (1914); Lee v. Wilmington Sav. Bank, 31 Ga. App. 327, 120 S.E. 689 (1923), cert. denied, 31 Ga. App. 812 (1924), and see Jordan v. Rhodes, 24 Ga. 478 (1858); Moody v. Griffin, 60 Ga. 459 (1878). When no time specified for performance, presumption is that parties intended performance within reasonable time. Cassville-White Assocs. v. Bartow Assocs., 150 Ga. App. 561, 258 S.E.2d 175 (1979). If time fixed, but not stated to be of essence, issue open to construction. — If time is fixed, but there is no express statement that it is of essence of contract, it is open to construction to determine whether such is the case. Alabama Constr. Co. v. Continental Car & Equip. Co., 131 Ga. 365, 62 S.E. 160 (1908). In contracts for sale of personal property, wherein a time is named for delivery, it is a question of construction, in each particular case, as to whether or not time named is material part of contract, breach of which will give other party right of action therefor. Gude & Walker v. J. B. Bailey Co., 4 Ga. App. 226, 61 S.E. 135 (1908); Augusta Factory v. Mente & Co., 132 Ga. 503, 64 S.E. 553 (1909). In a marital settlement agreement which provided that the former husband would remove the ex-wife’s name from the mortgage on certain marital property within 12 months, and that the ex-wife would quitclaim ex-wife’s interest in the property to the husband, time was not of the essence under O.C.G.A. § 13-2-2(9) because the agreement did not provide that it was void if the former husband’s obligation was not performed within 12 months, and another provision requiring the husband to make mortgage payments on the property in the interim and to indemnify the ex-wife for any mortgage debt also showed time was not of the essence; therefore, it was error to find the ex-wife could retain an interest in the property because the husband’s estate did not perform this obligation within 12 months. Torgesen v. Torgesen, 274 Ga. App. 298, 617 S.E.2d 223 (2005). Contract term prescribing time for performance may be enlarged by agreement based on consideration. Gude & Walker v. J. B. Bailey Co., 4 Ga. App. 226, 61 S.E. 135 (1908). Parties to notes may make time of essence by provision for acceleration upon default. — Although time is not generally of the essence of a contract, it may become so by express stipulation or reasonable construction, and it is competent for parties to series of promissory notes, maturing monthly through several years, to provide that in case of default in payment of any two of them, and continuation of such default for specified period, the entire series shall, at option of holder thereof, become due and collectible. Cone v. Hunter, 38 Ga. App. 45, 142 S.E. 468 (1928). Partner competent to contract for firm may make time of essence of contract, and bind firm to abide legal consequence of so doing. Van Winkle & Co. v. Wilkins, 81 Ga. 93, 7 S.E. 644, 12 Am. St. R. 229 (1888). Time of essence in contract for sale of land where such intent is clear. — Ordinarily in contract for sale of land time is not of essence of contract; courts lean against such construction for reason that it would result in enforcement of penalty, and because interest is ordinarily treated as full compensation for delay. Ellis v. Bryant, 120 Ga. 890, 48 S.E. 352 (1904); Burkhalter v. Roach, 142 Ga. 344, 82 S.E. 1059 (1914). Time may be made of the essence of contract for sale of lands by express agreement or reasonable construction, but ordinarily courts lean against such construction. If time is of the essence it may be waived; and subsequent conduct of obligor may have that effect. Eaton v. Harwood, 198 Ga. 240, 31 S.E.2d 473 (1944). For time to be treated as of the essence of contract for sale of land, it should clearly appear therefrom that such was intention of parties; as, for example, by provision that agreement shall be void unless act named be completed by certain day, or by other equivalent expression. Mangum v. Jones, 205 Ga. 661, 54 S.E.2d 603 (1949); Scheer v. Doss, 211 Ga. 7, 83 S.E.2d 612 (1954). Contracts for purchase of real property. — General rule is that, in contracts for purchase of personal property, time is not of essence of contract unless parties have exWhen Time Is of the Essence (Cont’d) pressly so treated it, or when it is necessarily so from nature and circumstances of contract. Sneed v. Wiggins, 3 Ga. 94 (1847). An option contract is peculiarly a contract of which time is of the essence. Because of one-sided nature of an option contract, time of election by optionee is of essence of contract in equity as well as in law, whether contract expressly so stipulates or not. Hughes v. Holliday, 149 Ga. 147, 99 S.E. 301 (1919). As a general rule, time fixed by contract within which option may be exercised is to be regarded as of the essence. Henry Cotton Mills v. Shoenig & Co., 33 Ga. App. 467, 127 S.E. 238 (1925). An option is peculiarly an agreement of which time is of the essence. Gulf Oil Corp. v. Willcoxon, 211 Ga. 462, 86 S.E.2d 507 (1955); Bowden v. Mews Dev. Corp., 247 Ga. 546, 277 S.E.2d 653 (1981). Options appendant and options in gross. — Time is of the essence of options appendant to a lease contract as well as options in gross. Bowden v. Mews Dev. Corp., 247 Ga. 546, 277 S.E.2d 653 (1981). When contract stipulates time for shipment, parol evidence admissible to show time of essence. — When written contract for sale of personal property fixed time within which shipment should be made by vendor to purchaser, parol evidence was admissible to show that time was of essence of contract. Van Winkle & Co. v. Wilkins, 81 Ga. 93, 7 S.E. 644, 12 Am. St. R. 299 (1888); Alabama Constr. Co. v. Continental Car & Equip. Co., 131 Ga. 365, 62 S.E. 160 (1908). Time generally of essence when subject matter of contract of speculative or fluctuating value. — In contract for sale of articles of varying seasonal value, time for delivery is to be taken as an essential element of contract. Beck & Gregg Hdwe. Co. v. Hall Hdwe. Co., 30 Ga. App. 224, 117 S.E. 271 (1923). When subject matter of contract is of speculative or fluctuating value, it is generally held that parties have intended that time shall be of essence. Henry Cotton Mills v. Shoenig & Co., 33 Ga. App. 467, 127 S.E. 238 (1925). Time of essence where contract provides for immediate reversion to grantor upon default in payment. — Where deed by implication definitely fixed as times for performance dates prescribed by law for ultimate payment of taxes, and provided also that failure to comply with condition would cause title and remainder interest immediately to revert to grantor, only reasonable construction is that time should be treated as of essence of contract. Evans v. Brown, 196 Ga. 634, 27 S.E.2d 300 (1943). Time fixed for performance of condition subsequent must ordinarily be complied with. — When no time is fixed for performance of a condition subsequent, it is generally to be performed within reasonable time; but if particular time is given, condition must ordinarily be performed within that time. Evans v. Brown, 196 Ga. 634, 27 S.E.2d 300 (1943). Time of essence of contract stipulating time for payments and containing acceleration clause. — Contract to pay money, in which it is expressly stipulated that installments shall be paid at specified times, and that if one installment is not promptly paid, whole sum shall be due and payable, time is essence of contract, and if party agreeing to pay fails to do so, that party is not entitled to relief in equity. Sneed v. Wiggins, 3 Ga. 94 (1847). Time of essence where builder knows building has been leased from time set for completion. — When builder agrees to erect building within certain time, knowing that it has been leased from time named for building’s completion, and breaks stipulation as to time, the builder is ordinarily liable to owner for loss of rent. Albany Phosphate Co. v. Hugger Bros., 4 Ga. App. 771, 62 S.E. 533 (1908). Time probably of essence of contract for publication of advertisement in specified issues of newspaper. — It would seem that if contract is made for publication of advertisement in specified issues of newspaper, reasonable construction of contract would make time of essence. Springfield Metallic Casket Co. v. Dunn, 12 Ga. App. 8, 76 S.E. 644 (1912). On facts, time was of essence of contract by reasonable construction. Sewell v. C.I.T. Corp., 43 Ga. App. 676, 160 S.E. 99 (1931). Construction that time is of the essence may be determined as a matter of law. — When a contract for sale clearly fixes by unambiguous language a time for performance, and when there is no evidence tending to show that the parties did not intend that time should be of the essence of the contract, but the contract and the surrounding circumstances manifestly show that the parties intended that time should be of the essence, the court may so rule as matter of law. Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 507 S.E.2d 493 (1998). On facts, time of essence as to some provisions of contract but not to others. Savannah Ice Delivery Co. v. American Refrigerator Transit Co., 110 Ga. 142, 35 S.E. 280 (1900); Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695, 58 S.E. 200 (1907). Where set delivery date subject to change at will of vendee, time not of essence. — In contract where date named is not fixed as final and definite date for delivery, but time of shipment can be accelerated or deferred at will of vendee, it could not reasonably be said that shipment on particular date mentioned in agreement was intended by parties to be of very essence of contract. Cobb Lumber Co. v. Sunny S. Grain Co., 36 Ga. App. 140, 135 S.E. 759 (1926). Time not of essence of promise to return borrowed money in ten days. — Where one person borrowed money of another and promised to return the money in ten days or send lender note which the person held on third party, it was held that equity would relieve against such contract if satisfactorily proven, because ten days within which money was to be returned was not of essence of contract. Cock & Thompson v. Brown & Carmichael, 30 Ga. 925 (1860). Notice of condition making prompt performance impossible. — It is inequitable to allow an owner to reap the benefits of a contractor’s work without reimbursing the owner for the cost of the performance where the owner authorized the work and then withdrew permission despite notice of a condition which made prompt performance impossible. Anderson v. Golden, 569 F. Supp. 122 (S.D. Ga. 1982). Liquidated damages as remedy. — Time was of the essence in a contract for the sale of a motel, and the purchaser’s failure to assume a loan and to close on the purchase entitled the vendor to retain the purchaser’s pre-paid closing costs as liquidated damages, where the contract did not explicitly state that time was of the essence but its terms made that construction reasonable; even if the contract were construed to allow the sale to be closed in a reasonable time, the purchaser’s delay of eight months was patently unreasonable. Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 507 S.E.2d 493 (1998). Recovery in quantum meruit. — Georgia follows the English rule which allows recovery in quantum meruit by a plaintiff who is in substantial breach of the contract as long as the breach is not willful or deliberate. Anderson v. Golden, 569 F. Supp. 122 (S.D. Ga. 1982).