United Parcel Service, Inc. v. Universal Diamond Corp.

Sognier, Chief Judge. Universal Diamond Corporation, Inc. brought suit against United Parcel Service, Inc. to recover damages for United Parcel’s alleged breach of two agreements to collect “cash only” for C.O.D. shipments made by Universal Diamond. The parties filed cross motions for summary judgment. The trial court granted Universal Diamond’s motion and denied that of United Parcel, and United Parcel appeals. On November 25, 1988, and again on November 29, 1988, appellee contracted with appellant for C.O.D. delivery by next day air service of two shipments of jewelry valued at $15,000 and $13,500 respectively. For each shipment, appellee’s president, Amos Agami, and a sales representative of appellant filled out a bill of lading and a C.O.D. tag. The bill of lading required appellee to check the box beside the manner of payment preferred, choosing among “check,” “cash,” or various types of credit, and on each form Agami checked “cash.” The shipper instructions printed on the C.O.D. tag provided that “ ‘CASH ONLY’ MUST BE ENTERED ON INSTRUCTION LINE AND BOX CHECKED ON RECEIPTS IF DRIVER IS NOT AUTHORIZED TO ACCEPT CHECK.” Agami complied with both of these directives, placing a check in the box next to the instruction to “CHECK HERE IF CASH ONLY” and writing the words “CASH ONLY” in the space provided for instructions. Appellant accepted cashier’s checks for both shipments. Appellee rejected these payments as not in conformance with the contractual requirement, and the checks were subsequently proved to be counterfeit. Appellant contends the trial court’s ruling was erroneous either because the contracts between the parties clearly authorized it to accept cashier’s checks, or, in the alternative, because the term “cash only” is ambiguous and should be construed to mean near-cash equivalents such as cashier’s checks. We do not agree. Although appellant cites numerous cases, many of which are from other jurisdictions, analyzing the meaning of the term “cash” and interpreting it to include methods of payment other than currency, this argument ignores the fact that in the agreements at issue, the term “cash” was modified by the word “only.” We find the inclusion of the word “only” clearly meant that the term “cash” was used in its narrowest sense to mean “only currency.” See Black’s Law Dictionary, 5th ed., p. 982 (“only” means “[s]olely; merely; for no other purpose; ... of or by itself; without anything more; exclusive; nothing else or more”). Kerlin v. Young, 159 Ga. 95, 102, 103 (1) (125 SE 204) (1924), cited by appellant and the dissent, is not applicable because there the contract used the term “cash” with no qualifying language. The Air Ser [795] vice Guide promulgated by appellant to explain its next day air service cannot be used to create an ambiguity because its provisions were neither referenced by nor incorporated into the contracts between the parties. Compare ADC Constr. Co. v. McDaniel Grading, 177 Ga. App. 223, 225-226 (2) (338 SE2d 733) (1985). There being no ambiguity in the contractual requirement that appellant accept only currency and no material factual dispute concerning what appellant accepted from the consignee, the only question remaining is whether the payments complied with the contractual requirement as a matter of law. Since the acceptance of a cashier’s check constituted a breach as a matter of law of appellant’s contractual obligation to accept only currency, appellee was entitled to summary judgment. Accordingly, we affirm the grant of appellee’s motion and the denial of appellant’s motion. Judgment affirmed. McMurray, P. J., Birdsong, P. J., Pope, Cooper and Andrews, JJ., concur. Beasley, J., concurs specially. Banke, P. J., and Corley, J., concur in part and dissent in part.