O.C.G.A. § 13-1-13 (2019)

Annotations

Law reviews. - For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004).

JUDICIAL DECISIONS Analysis General Consideration

Voluntary Payments Involuntary Payments Mistake Duress without exception. Greene v. McIntyre, 119 Ga. App. 296, 167 S.E.2d 203 (1969). Burden on plaintiff to establish exception to voluntary payment rule. - Georgia law requires a plaintiff in an overpayment case to prove that the plaintiff was unaware of the true facts at the time the overpayment was made, or fit within an exception to the ‘‘voluntary payment’’ rule. Kleiner v. First Nat’l Bank, 581 F. Supp. 955 (N.D. Ga. 1984). Construction with equitable principles. - Although an action for money had and received is governed by O.C.G.A. § 13-1-13, Georgia courts have construed that section and its predecessors, and interpreted the action itself, in conjunction with the equitable principles set forth in the Code, including O.C.G.A. § 23-2-32 and its predecessors. Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 349 S.E.2d 368 (1986). Equities to be considered by the jury in the case of a claim for money had and received are: (1) the degree of negligence on the plaintiff ’s part in erroneously paying over the money; (2) the level of good faith with which the defendant acted in receiving and retaining the money; and (3) prejudice, i.e., whether the defendant’s position has so changed that it would be unfair to require the defendant to pay the money back. Gulf Life Ins. Co. v. Folsom, 907 F.2d 1115 (11th Cir. 1990). In an action for money had and received, where the plaintiff was negligent, the plaintiff is entitled to get the plaintiff ’s money back - unless the jury decides that he doesn’t deserve it back or that the defendant deserves to keep it. Gulf Life Ins. Co. v. Folsom, 907 F.2d 1115 (11th Cir. 1990). Application of O.C.G.A. § 23-2-22. - O.C.G.A. § 23-2-22 was inapplicable to a company’s counterclaim to recover payments under a purchase agreement as § 23-2-22 offered relief following a mistake of law; the company made the payments in ignorance of the law and O.C.G.A. § 13-1-13 prohibited recovery of the payments voluntarily made in ignorance of the law. Wallis v. B & A Construction Co., 273 Ga. App. 68,

General Consideration Section not unconstitutional for reason that it violates due process clauses of state and federal Constitutions. Strachan Shipping Co. v. Mayor of Savannah, 168 Ga. 309, 147 S.E. 555 (1929) (see O.C.G.A. § 13-1-13). Statute has been strictly construed by Georgia courts as against one making payments. Atlanta Milling Co. v. Norris Grain Co., 271 F.2d 453 (5th Cir. 1959) (see O.C.G.A. § 13-1-13). O.C.G.A. § 13-1-13 did not apply to an equitable action by a bank to reform a note which had been mistakenly marked ‘‘paid in full.’’ Decatur Fed. Savs. & Loan v. Gibson, 268 Ga. 362, 489 S.E.2d 820 (1997). Voluntary payment doctrine not a defense to Natural Gas Act consumer claim. - Trial court erred in dismissing natural gas customers’ class action based on the voluntary payment doctrine. O.C.G.A. § 46-4-160.5, which specifically authorized a private right of action for damages against a provider for intentionally and deceptively over charging the customers, prevailed over O.C.G.A. § 13-1-13, the general statute setting forth the voluntary payment doctrine. Southstar Energy Servs., LLC v. Ellison, 286 Ga. 709, 691 S.E.2d 203 (2010). General presumption that money paid is due and payment voluntary. - General presumption is that when one pays money to another, money is due and payee is entitled thereto, and the payment is voluntarily made by payer, and in action to recover the money back, burden is on payer to show that payment was not due and that money was not paid by payer voluntarily; this rule applies to payment of insurance premiums by insured to insurer. New York Life Ins. Co. v. Williamson, 53 Ga. App. 28, 184 S.E. 755 (1936). Burden is on plaintiff to establish that payments were not voluntary. City of Norcross v. Taylor, 153 Ga. App. 836, 267 S.E.2d 255 (1980). While money voluntarily paid may not ordinarily be recovered, this rule is not

in ignorance of legal rights of party paying, are voluntary, and cannot be recovered. Commerce Fin. Co. v. Perry, 67 Ga. App. 491, 21 S.E.2d 123 (1942). Trial court erred in not granting a mortgage company’s motion for summary judgment on the company’s defense under the ‘‘voluntary payment rule’’ codified in O.C.G.A. § 13-1-13 because there was no evidence of artifice, deception, or fraud on the part of the company as the company informed the homeowners more than six months prior to the closing on the sale of the home that the disputed fees were being charged; by their own admission, the homeowners were aware of the fees. Regions Mortg., Inc. v. Jackson, 294 Ga. App. 525, 669 S.E.2d 411 (2008). Voluntary payments of claims cannot be recovered although contract itself is void and unenforceable. Couch v. Blackwell & Assoc., 150 Ga. App. 739, 258 S.E.2d 552 (1979). Doctrine did not bar payment made before contract breached. - The voluntary payment doctrine of O.C.G.A. § 13-1-13 did not preclude a buyer of parts from recovering a partial payment made to the seller. After the buyer made an interim payment the buyer was not required to make, the seller breached the contract by not allowing the buyer to inspect a shipment of parts and by abandoning performance of the contract. Energy & Process Corp. v. Jim Dally & Assocs., 291 Ga. App. 772, 662 S.E.2d 835 (2008). Recovery of interest payments on null and void contract, unlike payments toward principal, are recoverable. - Recovery of payments made by borrower towards repayment of principal under null and void loan contract is barred if payments were made voluntarily, but repayment of sums constituting interest on such an invalid loan are recoverable by borrower, since lender’s claim to principal stands on different equitable footing than lender’s claim to interest on principal sum of loans. Sanders v. Liberty Loan Corp., 153 Ga. App. 859, 267 S.E.2d 286 (1980), aff ’d within direction, 246 Ga. 292, 271 S.E.2d 218 (1980). Payment of illegal demand not recoverable unless within exceptions provided by law. - Where party pays illegal demand with full knowledge of all facts which render such

General Consideration (Cont’d) 614 S.E.2d 193 (2005). Effect of detrimental reliance by recipient. - The court did not err in ruling that a recipient of Medicaid reimbursement funds had so changed its position in reliance on its hospital-based classification that it would be unjust to require it to refund the monies in question. Department of Medical Assistance v. Presbyterian Home, Inc., 200 Ga. App. 885, 409 S.E.2d 881 (1991), cert. denied, 1992 Ga. LEXIS 357 (1992). ‘‘Where all the facts are known.’’ - O.C.G.A. § 13-1-13 by its terms applies ‘‘where all the facts are known.’’ This has been construed to include constructive, as well as actual knowledge, under such equitable principles as those in O.C.G.A. § 23-2-29. Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 349 S.E.2d 368 (1986). Client may recover from attorney where proprieties of relationship demand return of portion of fee paid. Greene v. McIntyre, 119 Ga. App. 296, 167 S.E.2d 203 (1969). Where purpose for payment fails of accomplishment, money paid cannot be retained. - Where purpose for which plaintiff parted with the plaintiff ’s money failed of accomplishment, defendants cannot in good conscience retain money, and plaintiff is entitled to have the money returned to the plaintiff. Broome v. Cavanaugh, 102 Ga. App. 563, 116 S.E.2d 881 (1960). Accepting employment in confidential relationship without disclosing lack of qualification warrants recovery of money paid. - One who accepts employment in confidential relationship of attorney and client and fee for such services to be performed, without disclosing lack of qualification and authorization under law to perform services desired, has practiced fraud upon the principal which warrants recovery by principal of fee paid, where services which may have been rendered do not appear to have been of any material benefit to principal. Lowe v. Presley, 86 Ga. App. 328, 71 S.E.2d 730 (1952). Payments made without duress or fraud, with knowledge of all facts, are voluntary and unrecoverable. - Payments not made under duress, and made with knowledge of all facts, without fraud or deception on part of person to whom payment is made, though

policy in effect, and allowing the premium to go unpaid would have defeated the purpose of the parties’ agreement. Hibbard v. McMillan, 284 Ga. App. 753, 645 S.E.2d 356 (2007). Proof required of party seeking recovery. - Party seeking recovery must prove that the payment was not voluntarily made because certain material facts were not known at the time of payment or a valid reason existed for failure to determine the truth. Rod’s Auto Fin., Inc. v. Finance Co., 211 Ga. App. 63, 438 S.E.2d 175 (1993). Cited in Hoke v. City of Atlanta, 107 Ga. 416, 33 S.E. 412 (1899); Williams v. Stewart, 115 Ga. 864, 42 S.E. 256 (1902); Everett v. Tabor, 127 Ga. 103, 56 S.E. 123, 119 Am. St. R. 324 (1906); Georgia R.R. & Banking Co. v. Crossley & Co., 128 Ga. 35, 57 S.E. 97 (1907); McDonald v. Sowell, 129 Ga. 242, 58 S.E. 860, 12 Ann. Cas. 701 (1907); Fenwick Shipping Co. v. Clarke Bros., 133 Ga. 43, 65 S.E. 140 (1909); Harris v. Neil, 144 Ga. 519, 87 S.E. 661 (1916); Finch v. Cox Co., 19 Ga. App. 256, 91 S.E. 281 (1917); Burell v. Pirkle, 156 Ga. 398, 119 S.E. 529 (1923); Dennison Mfg. Co. v. Wright, 156 Ga. 789, 120 S.E. 120 (1923); Stern v. Howell, 33 Ga. App. 693, 127 S.E. 775 (1925); Morris v. Scott, 33 Ga. App. 787, 127 S.E. 823 (1925); Mayor of Savannah v. Southern Stevedoring Co., 36 Ga. App. 526, 137 S.E. 123 (1927); Daniel Bros. Co. v. Richardson, 39 Ga. App. 121, 146 S.E. 505 (1929); Wardlaw v. Withers, 39 Ga. App. 600, 148 S.E. 16 (1929); Darby v. City of Vidalia, 168 Ga. 842, 149 S.E. 223 (1929); Trust Co. v. Mobley, 40 Ga. App. 468, 150 S.E. 169 (1929); Davidson v. Citizens’ Bank, 171 Ga. 81, 154 S.E. 775 (1930); Morgan v. Shepherd, 171 Ga. 33, 154 S.E. 780 (1930); Davison-Paxon Co. v. Walker, 174 Ga. 532, 163 S.E. 212 (1932); Morris v. Floyd County, 46 Ga. App. 150, 167 S.E. 127 (1932); American Mills Co. v. Doyal, 46 Ga. App. 236, 167 S.E. 312 (1933); Eibel v. Royal Indem. Co., 50 Ga. App. 206, 177 S.E. 350 (1934); M.C. Kiser & Co. v. Doyal, 51 Ga. App. 30, 179 S.E. 578 (1935); Nash Loan Co. v. Dixon, 181 Ga. 297, 182 S.E. 23 (1935); State Revenue Comm’n v. Alexander, 54 Ga. App. 295, 187 S.E. 707 (1936); New York Life Ins. Co. v. Bradford, 55 Ga. App. 248, 189 S.E. 914 (1937); Mayor of Fort Valley v. Levin, 183 Ga. 837, 190 S.E. 14 (1937); Atlanta Coach Co. v. Simmons, 55 Ga. App. 532, 190 S.E. 610

demand illegal, without immediate and urgent necessity therefor, or unless to release the party’s person or property from detention, or to prevent an immediate seizure of the party’s person or property, such payment must be deemed voluntary, and cannot be recovered back. McCarty v. Mobley, 14 Ga. App. 225, 80 S.E. 523 (1914); Dennison Mfg. Co. v. Wright, 156 Ga. 789, 120 S.E. 120 (1923). Section inapplicable where payment induced by misplaced confidence, artifice, deception or fraud of party paid. - While money voluntarily paid may not ordinarily be recovered back, nevertheless this rule has no application where payment is induced by misplaced confidence, artifice, deception, or fraudulent practice on part of person to whom money is paid. Lowe v. Presley, 86 Ga. App. 328, 71 S.E.2d 730 (1952). Section applicable to insurance premiums voluntarily paid by one entitled to waiver thereof. - Premiums voluntarily paid by insured, where the insured is entitled to waiver thereof under provisions of policies of insurance sued on, cannot be recovered back by insured except where it is alleged and proved by the insured that the payments were paid under a mistake of facts or because of fraud or artifice practiced upon insured. New York Life Ins. Co. v. Williamson, 53 Ga. App. 28, 184 S.E. 755 (1936). One cannot avoid legal consequences of one’s acts by protesting, at time one does the acts, that one does not intend to subject oneself to such consequences. Lewis v. Colquitt County, 71 Ga. App. 304, 30 S.E.2d 801 (1944). Section inapplicable to three-cornered transaction resulting in tort claim. - O.C.G.A. § 13-1-13 does not apply to a three-cornered transaction culminating in a tort claim for damages. Read v. Benedict, 200 Ga. App. 4, 406 S.E.2d 488 (1991). Section no bar to recovery of premiums not made to satisfy claim. - In a suit on a contract terminating a business relationship and requiring the defendant to select one of two options regarding an insurance policy, the plaintiff ’s recovery of insurance premiums the plaintiff paid was not barred by the voluntary payment doctrine of O.C.G.A. § 13-1-13; the plaintiff made premium payments not to satisfy a claim but to keep the

Ga. App. 291, 396 S.E.2d 252 (1990); Nix v. Crews, 200 Ga. App. 58, 406 S.E.2d 566 (1991); Watts v. Promina Gwinnett Health Sys., 242 Ga. App. 377, 530 S.E.2d 14 (2000); Liberty Nat’l Life Ins. Co. v. Radiotherapy of Ga., P.C., 252 Ga. App. 543, 557 S.E.2d 59 (2001).

General Consideration (Cont’d) (1937); Crisler v. Bank of Canton, 58 Ga. App. 485, 199 S.E. 252 (1938); Bowers v. Dolen, 187 Ga. 653, 1 S.E.2d 734 (1939); Goodwin v. MacNeill, 188 Ga. 182, 3 S.E.2d 675 (1939); American Sur. Co. v. Groover, 64 Ga. App. 865, 14 S.E.2d 149 (1941); Walker v. Bituminous Cas. Corp., 74 Ga. App. 517, 40 S.E.2d 228 (1946); Hurt & Quinn, Inc. v. Keen, 89 Ga. App. 4, 78 S.E.2d 345 (1953); Rose v. Mayor of Thunderbolt, 89 Ga. App. 599, 80 S.E.2d 725 (1954); Denton v. City of Carrollton, 235 F.2d 481 (5th Cir. 1956); Stein Steel & Supply Co. v. K. & L. Enters., Inc., 97 Ga. App. 71, 102 S.E.2d 99 (1958); Macon Coca-Cola Bottling Co. v. Evans, 214 Ga. 1, 102 S.E.2d 547 (1958); Coleman v. Aronson, 103 Ga. App. 469, 119 S.E.2d 599 (1961); Howell v. Muscogee County, 105 Ga. App. 515, 125 S.E.2d 139 (1962); Oxford v. Shuman, 106 Ga. App. 73, 126 S.E.2d 522 (1962); Seaboard Air Line R.R. v. Richmond Lumber, Inc., 109 Ga. App. 328, 136 S.E.2d 144 (1964); Gulf Am. Fire & Cas. Co. v. Harper, 117 Ga. App. 356, 160 S.E.2d 663 (1968); Hawes v. Smith, 120 Ga. App. 158, 169 S.E.2d 823 (1969); Byers v. Lieberman, 126 Ga. App. 582, 191 S.E.2d 470 (1972); United States Lines v. United States, 470 F.2d 487 (5th Cir. 1972); Blackmon v. Ewing, 231 Ga. 239, 201 S.E.2d 138 (1973); Flanders v. Columbia Nitrogen Corp., 135 Ga. App. 21, 217 S.E.2d 363 (1975); Town of Lyerly v. Short, 234 Ga. 877, 218 S.E.2d 588 (1975); Deevers v. Associated Distribs., Inc., 138 Ga. App. 751, 227 S.E.2d 485 (1976); Yeargin v. Farmers Mut. Ins. Ass’n, 142 Ga. App. 76, 234 S.E.2d 856 (1977); Cooper v. Public Fin. Corp., 144 Ga. App. 572, 241 S.E.2d 839 (1978); Grizzard v. Petkas, 146 Ga. App. 318, 246 S.E.2d 375 (1978); Cooper v. Public Fin. Corp., 146 Ga. App. 250, 246 S.E.2d 684 (1978); Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980); Blanton v. Blanton, 154 Ga. App. 646, 269 S.E.2d 505 (1980); City of Norcross v. Taylor, 157 Ga. App. 335, 277 S.E.2d 327 (1981); Kay Solar Sys. v. Rome Printing Co., 160 Ga. App. 825, 287 S.E.2d 675 (1982); Georgia Power Co. v. Foster Wheeler Corp., 161 Ga. App. 641, 288 S.E.2d 720 (1982); United States v. DeKalb County, 729 F.2d 738 (11th Cir. 1984); Head v. Hook, 254 Ga. 293, 329 S.E.2d 145 (1985); Levinson v. American Thermex, Inc., 196

Voluntary Payments Payment in response to threat to levy execution if not paid promptly not involuntary. - Payment of judgment alleged to be void, where facts are all known by defendant, and there is no misplaced confidence, and no artifice, deception, or fraudulent practice used by other party, is voluntary payment, and cannot be recovered, unless made under urgent and immediate necessity therefor, or to release person or property, although such payment is made under protest. Mere threat to levy execution if not paid promptly or at once does not render payment involuntary. West v. Brown, 165 Ga. 187, 140 S.E. 500 (1927), citing Williams v. Stewart, 115 Ga. 864, 42 S.E. 256 (1902). Mere apprehension or threats of civil proceeding to enforce claim do not render claim involuntary. - Mere apprehension or threats of civil proceeding to enforce claim, unaccompanied by any act of hardship or of oppression, does not render payment in response thereto involuntary. Strachan Shipping Co. v. Mayor of Savannah, 168 Ga. 309, 147 S.E. 555 (1929). Threatened levy upon land not seizure as would render payment involuntary. - Threatened levy upon land is neither an immediate seizure of one’s goods or arrest of one’s person such as would make payment in lieu of levy less than voluntary. Dunton v. Norton, 42 Ga. App. 310, 155 S.E. 775 (1930). Voluntary expenditures made by intervenor in partition suit not recoverable. - Expenditures voluntarily made by intervenor in partition suit while living with his wife and mother, (plaintiff and defendant) and in providing home for himself, his wife, and his mother, not recoverable by him. Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951). Application of doctrine to mistaken duplicate payment. - The voluntary payment doctrine did not bar a city’s unjust enrichment and conversion claims filed against a construction contractor as the contractor

because of ignorance of rights which would have allowed full payment was a voluntary action under O.C.G.A. § 13-1-13. Hawkins v. Travelers Ins. Co., 162 Ga. App. 231, 290 S.E.2d 348 (1982). Settlement for amount in excess of liability limit. - Insurance company which settled a lawsuit for $600,000, prior to a declaratory judgment holding that the limit of liability was $500,000, could not recover the $100,000 overpayment, which constituted a voluntary payment. Insurance Co. of N. Am. v. Kyla, Inc., 193 Ga. App. 555, 388 S.E.2d 530 (1989). Contribution by employer to tort settlement voluntary. - Where a ‘‘statutory employer,’’ within the meaning of the workers’ compensation law, enjoyed tort immunity at the time it contributed to a tort settlement, its payment constituted a voluntary payment, and the employer was not entitled to credit for funds it contributed to the settlement. Travelers Ins. Co. v. McNabb, 201 Ga. App. 297, 410 S.E.2d 788, cert. denied, 201 Ga. App. 904, 410 S.E.2d 748 (1991), overruled on other grounds, Yoho v. Ringier of Am., Inc., 263 Ga. 338, 434 S.E.2d 57 (1993). Retirement benefits. - Summary judgment for a retirement system was reversed as there were fact issues as to voluntary payment under O.C.G.A. § 13-1-13, and equitable estoppel under O.C.G.A. § 23-2-32, as a son claimed that his mother told him that her benefits would continue to be paid after her death; details of how the retirement system discovered the mother’s death were needed to resolve the possibility that the son retained and spent the money in good faith. Applebury v. Teachers’ Ret. Sys., 275 Ga. App. 194, 620 S.E.2d 452 (2005). Recovery of payments by county. - In an action by a county to recover payments the county made to a company in connection with road improvement projects, the county could not raise the argument that the provisions of O.C.G.A. § 36-10-1, regarding requirements for county contracts, were not followed when the county paid the amounts and then waited more than two years to file suit to recover the monies paid. Twiggs County v. Oconee Elec. Membership Corp., 245 Ga. App. 231, 536 S.E.2d 553 (2000). County was not entitled to recover voluntary payments made to the county tax commissioner in the form of commissions the

failed to show that: (1) a genuine issue of material fact remained over whether the city was negligent in ascertaining the true facts; and (2) any prejudice would result if the mistaken duplicate payment the city made to the contractor were returned to the city. D & H Constr. Co. v. City of Woodstock, 284 Ga. App. 314, 643 S.E.2d 826 (2007). Overpayment in posting of bail bonds. - Family’s suit to recover an overpayment the family made to two bail bondspersons to post bail bonds was not barred by O.C.G.A. § 13-1-13 even though the payments to the bondspersons were voluntarily made as the family paid the money to release a family member from detention. Borison v. Christian, 257 Ga. App. 257, 570 S.E.2d 696 (2002). Recovery of overpayments from energy company. - Trial court erred by dismissing a class action complaint under O.C.G.A. § 9-11-12(b)(6) for failure to state a cause of action in a suit brought by customers against an energy company seeking recovery of overpayments as the voluntary payment doctrine did not apply to bar the action. Ellison v. Southstar Energy Servs., LLC, 298 Ga. App. 170, 679 S.E.2d 750 (2009), aff ’d, 286 Ga. 709, 691 S.E.2d 203 (2010). Money paid under apprehension or threat of criminal prosecution where no immediate danger not involuntary. - Money paid under apprehension or threat of criminal prosecution, when no warrant has been issued or proceeding begun, and there is no urgent and immediate danger, does not constitute duress so as to make payment compulsory. Strachan Shipping Co. v. Mayor of Savannah, 168 Ga. 309, 147 S.E. 555 (1929). Payments resulting from threats by one clothed with governmental authority to execute threats, generally recoverable. - To above rule there is this exception: Where there are demands and threats by persons clothed with governmental authority to carry the threats into execution by arrest and prosecution, case stands on a different footing from demands and threats of private individuals, and money paid as a result may generally be recovered. Strachan Shipping Co. v. Mayor of Savannah, 168 Ga. 309, 147 S.E. 555 (1929). Partial insurance settlement. - Acceptance of a partial settlement of an insurance claim in exchange for a general release

sured, a general contractor, because the subrogee’s commercial general liability policy only covered damages caused by an unforeseen ‘‘accident’’ or ‘‘occurrence’’ to a third party. Mass. Bay Ins. Co. v. Sunbelt Directional Drilling, Inc., No. 1:07-CV-0408-JOF, 2008 U.S. Dist. LEXIS 20066 (N.D. Ga. Feb. 14, 2008). Legal fees paid by spouse who killed other spouse. - In an estate administrator’s conversion suit against a law firm, the trial court properly granted the law firm summary judgment with regard to the administrator attempting to recover $125,000 in legal fees the decedent’s spouse had paid to the law firm as the law firm accepted the fees from the decedent’s spouse in good faith since it was not determined until sometime later that the spouse had killed the decedent after the spouse pled guilty to the homicide. Further, there was no evidence that the spouse did not have title to the money when the money was paid. Levenson v. Word, 294 Ga. App. 104, 668 S.E.2d 763 (2008), aff ’d, 286 Ga. 114, 686 S.E.2d 236 (2009). Wages voluntarily paid could not be recovered. - Under an employment contract, a business consultant was granted back wages as a matter of law because the company failed to show that the consultant misled the company about the hours the consultant actually worked and had paid the consultant wages up until the date of termination as a form of severance package, even though the company had concerns that the consultant might not have put in full work weeks; because the company chose not to act on the company’s concerns, the company was barred from recovering wages paid by the voluntary payment doctrine codified at O.C.G.A. § 13-1-13. Tura v. White Oak Group, Inc., No. 1:07-CV-0379-JOF, 2008 U.S. Dist. LEXIS 77958 (N.D. Ga. Sept. 15, 2008). Misplaced confidence doctrine applied to payment made after installation. - Voluntary payment doctrine in O.C.G.A. § 13-1-13 did not bar a customer’s claims alleging that a home improvement store improperly installed the customer’s dryer; although the customer had constructive notice of the installation conditions and the manufacturer’s specifications at the time of payment, the store’s guarantee of a quality, reliable, and professional installation of each dryer

Voluntary Payments (Cont’d) commissioner received in the commissioner’s capacity as tag fee agent, even though it was later determined that the commissioner was not entitled to receive a portion of tag fees as compensation, as the parties were operating under the mistaken belief that the law permitted the commissioner to be paid the commissions, both parties knew that the commissioner was being paid a commission from the fees collected, and there was no deception or fraud on the commissioner’s part regarding the fact that the commissioner was receiving the commissions. Montgomery County v. Sharpe, 261 Ga. App. 389, 582 S.E.2d 545 (2003). Payment of late charges. - The voluntary payment doctrine barred claims for recovery of late fees paid by cable television subscribers under a service agreement with the cable company which stated that a late fee would be charged to a customer’s account if payment was not received by the due date. Telescripps Cable Co. v. Welsh, 247 Ga. App. 282, 542 S.E.2d 640 (2000). On facts, payment voluntary. - J.A. Jones Constr. Co. v. Greenbriar Shopping Ctr., 332 F. Supp. 1336 (N.D. Ga. 1971), aff ’d, 461 F.2d 1269 (5th Cir. 1972); Rod’s Auto Fin., Inc. v. Finance Co., 211 Ga. App. 63, 438 S.E.2d 175 (1993); Chemin v. State Farm Mut. Auto. Ins. Co., 226 Ga. App. 702, 487 S.E.2d 638 (1997). Payment not accepted. - Evidence showed that plaintiff who was awarded judgment did not accept payment of $43,166 which defendant made in an attempt to satisfy the judgment prior to appeal, and the appellate court held that plaintiff was not entitled to take advantage of defendant by arguing that the check was a voluntary payment under O.C.G.A. § 13-1-13 and did not have to be returned, but that plaintiff was required to return the money to comply with the appellate court’s judgment reversing the trial court’s judgment in plaintiff ’s favor. Blanton v. Bank of Am., 263 Ga. App. 284, 587 S.E.2d 411 (2003). Subrogee’s claim barred. - Voluntary payment doctrine in O.C.G.A. § 13-1-13 barred a subrogee/insurer’s claim for contractual indemnification against a subcontractor for damage done to a roadway during a construction project managed by the in-

goods and which carrier refused to repay on demand. Southern Ry. v. Schlittler, 1 Ga. App. 20, 58 S.E. 59 (1907). Payment to prevent detention resulting from conviction unsupported by valid ordinance, not voluntary. - Where one has been convicted in recorder’s court, and no valid ordinance authorizes such conviction, payment of fine to prevent immediate seizure of person is not voluntary payment, and may be recovered back. Rose v. Mayor of Thunderbolt, 89 Ga. App. 599, 80 S.E.2d 725 (1954). Premiums paid to prevent insurer from treating policy as lapsed not voluntary. - Premiums paid after furnishing proof of disability and required in order to prevent insurer from treating policy as lapsed are recoverable as payments made under urgent and immediate necessity, and are not voluntary. Metropolitan Life Ins. Co. v. Saul, 182 Ga. 284, 185 S.E. 266 (1936). Payment on condition that difference in amount due to be adjusted later not voluntary. - Where county commissioners proposed to settle for $1,200.00 all of amount that auditors claimed was due county by clerk of superior and city courts, and clerk on the clerk’s part, to avoid delay, agreed to deposit $1,200.00, on condition that difference as to amount due should be adjusted later, and at same time county commissioners on their part agreed that, if on investigation amount proved to be incorrect, matter would be adjusted by refunding to clerk amount incorrectly charged to the clerk, this was not a voluntary payment, and hence whatever part of $1,200.00 that was incorrectly charged to plaintiff clerk could be recovered as money had and received. Lewis v. Colquitt County, 71 Ga. App. 304, 30 S.E.2d 801 (1944). Shareholder’s payment to avoid seizure of corporate property not involuntary. - Shareholder’s payment of $70,000 for stock was not considered ‘‘involuntary’’ so as to fall outside the ambit of O.C.G.A. § 13-1-13, merely because it was made under what the shareholder perceived to be an ‘‘urgent and immediate necessity’’ of preventing another’s ‘‘eventual and imminent seizure’’ of the corporation’s property. Graham v. Cook, 179 Ga. App. 603, 347 S.E.2d 623 (1986). On facts, payment involuntary. - See Speed Oil Co. v. Aycock, 188 Ga. 46, 2 S.E.2d 666 (1939).

that the store sold provided material facts supporting the misplaced confidence exception to the voluntary payment doctrine thereby precluding judgment as a matter of law. Goldstein v. Home Depot U.S.A., Inc., 609 F. Supp. 2d 1340 (N.D. Ga. 2009). Involuntary Payments Failure to disclose salient facts. - When the breach of duty on which recovery is based is failure to disclose salient facts to the plaintiff, the payments cannot be deemed voluntary within the language of O.C.G.A. § 13-1-13. City of Commerce v. Duncan & Godfrey, Inc., 157 Ga. App. 337, 277 S.E.2d 266 (1981). Payment of earnest money under real estate sale contract was not voluntary payment. Williams v. Gottlieb, 90 Ga. App. 438, 83 S.E.2d 245 (1954). Fact that there is pending litigation regarding a party’s obligation to pay money does not render payments made during the litigation involuntary unless the payments come within an exception specified in O.C.G.A. § 13-1-13. Yeazel v. Burger King Corp., 241 Ga. App. 90, 526 S.E.2d 112 (1999). No evidence of immediate threat. - Although the tenant of a commercial lease may have feared that the landlord would take action if the tenant failed to make the payments in the amount demanded, there was no evidence that the payments were made to counter an immediate threat to person or property so as to come within an exception to O.C.G.A. § 13-1-13. Yeazel v. Burger King Corp., 241 Ga. App. 90, 526 S.E.2d 112 (1999). Payment to recover possession of personalty wrongfully detained not voluntary. - Voluntary payments, though illegally demanded, cannot be recovered back. But a payment made for purpose of recovering possession of personal property wrongfully detained is not voluntary, and may be recovered back. This is true when owner does not know who has possession of property, but makes payment to third person to be used in securing release of goods. DuVall v. Norris, 119 Ga. 947, 47 S.E. 212 (1904). Overcharge of freight paid under protest in order to obtain goods is recoverable. - Carrier is liable to suit by shipper for recovery of overcharge of freight paid under protest in order to obtain the shipper’s

true facts and the other party would not be prejudiced by refunding the payment, subject to a weighing of the equities between the parties by the trier of fact. Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 349 S.E.2d 368 (1986); Graham v. Hogan, 185 Ga. App. 842, 366 S.E.2d 219 (1988); Landers v. Heritage Bank, 188 Ga. App. 785, 374 S.E.2d 353 (1988). Where both parties to a construction contract labored under a mutual mistake of fact that there was a valid contract and since plaintiff made the deposit with the defendants in belief that such was required under the contract, then O.C.G.A. § 13-1-13 has no application because the money was not due and payable under a void contract. Cochran v. Ogletree, 244 Ga. App. 537, 536 S.E.2d 194 (2000). Reliance on computer records. - A jury issue exists as to whether the plaintiff was negligent in relying solely on the plaintiff ’s computer, considering the facts of the current widespread use of computers for the purpose of keeping business records, and that, although the computer here, though negligently programmed by the plaintiff ’s subsidiary, may not have been known to be inaccurate. Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 349 S.E.2d 368 (1986). There is distinction between mistake and ignorance of law and section applicable only to latter. - There is a distinction between ignorance and mistake of law. Ignorance implies passiveness; mistake implies action. Ignorance does not pretend to knowledge, but mistakes assumes to know. Ignorance may be result of laches, but mistake argues diligence. Mere ignorance is no mistake, but mistake involves more than ignorance. Hence, the statute does not apply to money paid under mistake of law. Whitehurst v. Mason, 140 Ga. 148, 78 S.E. 938 (1913). Money paid under mistaken apprehension of liability not recoverable. - There can be no recovery of money paid by lodge as funeral expenses for member when the amounts were paid out under mistaken apprehension as to lodge’s liability for amount of that benefit. Chapman v. Ellis, 58 Ga. App. 614, 199 S.E. 650 (1938). Affidavit that insurance paid without knowledge of payment by another not proving lack of knowledge. - Affidavit by insurer which stated that claim was paid without

Mistake Application to one paying money by mistake, without valid reason for ascertaining truth. - One paying money by mistake without valid reason for failing to ascertain truth cannot recover payment. Barker v. Federated Life Ins. Co., 111 Ga. App. 171, 141 S.E.2d 206 (1965). Section applies not only when one pays money with knowledge of all facts but also when one pays by mistake without valid reason for failing to ascertain truth. Bohannon v. Manhattan Life Ins. Co., 555 F.2d 1205 (5th Cir. 1977); Insurance Co. of N. Am. v. Kyla, Inc., 193 Ga. App. 555, 388 S.E.2d 530 (1989). Money paid under mistake or in ignorance of fact recoverable in appropriate circumstances. - Even where money is paid under mistake of fact, or in ignorance of facts, the money cannot be recovered, unless circumstances are such that party receiving the money ought not, in equity and good conscience, to be allowed to retain the money. In equity and good conscience refers only to acts and intentions of person receiving money as affecting other party to transaction. If one has acted in good faith and in good conscience with person paying money, one is entitled to retain the money, even if one’s actions and intentions may not have been in good faith and in good conscience as regards other persons not connected with transaction. Bryant v. Guaranty Life Ins. Co., 40 Ga. App. 573, 150 S.E. 596 (1929). While money paid under mistake of fact or in ignorance of facts may be recovered back if circumstances are such that party receiving ought not in equity and good conscience retain the money, to entitle a party to recover back money which the party has paid on ground that the money was paid to defendant through mistake or ignorance of facts, which one sets up as showing there was no legal liability on the party to pay, plaintiff should allege and show on trial that at time of payment plaintiff was mistaken as to such facts or ignorant of their existence. New York Life Ins. Co. v. Williamson, 53 Ga. App. 28, 184 S.E. 755 (1936). In an action for money had and received, the plaintiff generally can recover a payment mistakenly made when that mistake was caused by the plaintiff ’s lack of diligence or the plaintiff ’s negligence in ascertaining the

not void a contract on grounds of duress merely because one entered into the contract with reluctance, the contract was very disadvantageous to the party, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement. Graham v. Cook, 179 Ga. App. 603, 347 S.E.2d 623 (1986). Threat of prosecution not necessarily duress. - Mere threats of prosecution of one who has committed no crime, or by one who has apparently made no moves toward carrying out of such threats, do not amount to duress in law. Taranto v. Richardson, 50 Ga. App. 851, 179 S.E. 202 (1935). Claim for rescission of a settlement agreement was meritless where, at the time of the settlement, plaintiff was acting on a court order with full knowledge of all the extant facts and was not under immediate threat of seizure of property. Sellers Bros., Inc. v. Imperial Flowers, Inc., 232 Ga. App. 687, 503 S.E.2d 573 (1998).

knowledge of any other policy or that payments had been made under any other policy was not sufficient to prove lack of knowledge. Aetna Life Ins. Co. v. Cash, 121 Ga. App. 8, 172 S.E.2d 629 (1970). Mistake of law. - While money voluntarily paid may not ordinarily be recovered, this rule is not without exception. If payment was made in ignorance of law, recovery is barred; if in mistake of law, recovery is permitted. Emond v. State Farm Mut. Auto. Ins. Co., 175 Ga. App. 548, 333 S.E.2d 656 (1985). Duress In order for payment to be involuntary it must be paid under duress, and if payment is made under urgent and immediate necessity therefor or to prevent an immediate seizure of person or property, it is made under duress. Taranto v. Richardson, 50 Ga. App. 851, 179 S.E. 202 (1935). Disadvantage and unequal bargaining power not grounds of duress. - One may

OPINIONS OF THE ATTORNEY GENERAL dealer prohibited from using dealer tags. - One who has paid occupational tax as used car dealer but who is prohibited from receiving and using dealer tags because one did not register under Used Car Dealers Registration Act is not entitled to refund of occupational tax. 1969 Op. Att’y Gen. No. 69-167.

Payment of liquor license by licensee who subsequently sells business not recoverable. - Payment of retail liquor license by owner of store, which the owner shortly thereafter sold to another, is not recoverable where voluntarily made. 1948-49 Op. Att’y Gen. p. 593. Occupational tax not refundable to car

RESEARCH REFERENCES When statute of limitations begins to run against action to recover money paid by mistake, 79 ALR3d 754. Right of insurer under health or hospitalization policy to restitution of payments made under mistake, 79 ALR3d 1113.

C.J.S. - 70 C.J.S., Payment, §§ 132 et seq., 155, 156, 160. ALR. - Right to restitution of one paying, or advancing money upon the same security to pay, debt secured by supposedly valid lien where the lien proves invalid, 159 ALR 487. Partial payment on private building or construction contract as waiver of defects, 66 ALR2d 570.

CHAPTER 2 CONSTRUCTION Sec.

Sec.

Construction of contracts by courts generally; findings of fact by juries. Rules for interpretation of contracts generally. Ascertainment and enforcement of intention of parties generally.

Ascertainment of intention of parties where meaning placed on contract by one party known to other.

Cross references. - Formation and construction of sales contracts, §§ 11-2-201 et seq. and 11-2-301 et seq. JUDICIAL DECISIONS Cited in Burks v. Board of Trustees of Firemen’s Pension Fund, 214 Ga. 251, 104 S.E.2d 225 (1958); Farrendon Corp. v.

Genesco, Inc., 822 F. Supp. 1576 (N.D. Ga. 1992).

RESEARCH REFERENCES building contract, without fault of either party, 53 ALR 103. Effect on contract of sale of subsequent agreement to exchange, 53 ALR 207. Validity and construction of contract or option, on purchase of corporation stock by employee, for resale thereof to original seller on termination of employment, 66 ALR 1182. Construction and effect of provision excusing performance of contract in case of crop failure, 67 ALR 1432. Validity and enforceability of provision for renewal of lease at rental not determined, 68 ALR 157; 166 ALR 1237. Pursuit of remedies against third persons as condition of liability under bond conditioned against losses due to dishonesty or other misconduct of officer or employee, 74 ALR 284. Agreement, before death of third person, between his prospective heirs, devisees, or legatees as to their respective shares in the estate, 74 ALR 441. Validity, construction, applicability, and effect of provision in real estate mortgage

ALR. - Construction and effect of guaranty of circulation in advertising contract, 1 ALR 153. Divisibility of contract for the sale of an outfit, plant, or machinery, 4 ALR 1442. Admissibility of parole evidence to vary or explain the contract implied from the regular endorsement of a bill or note, 22 ALR 527; 35 ALR 1120; 54 ALR 999; 92 ALR 721. Payment or tender of unpaid purchase money as condition precedent to the right of a purchaser of land to rescind on the ground of defects in or want of title, 40 ALR 693. Promise to furnish separate instrument of guaranty or title as a dependent or an independent covenant, 48 ALR 371. Validity and construction of contract or option on purchase of corporate stock by employee for resale thereof to original seller on termination of employment, 48 ALR 625; 66 ALR 1182. Validity and construction, as regards buildings not on right of way, of contract relieving railroad from liability for destruction of buildings, 48 ALR 1003; 51 ALR 638. Who must bear loss from destruction of or damage to building during performance of

Admissibility of extrinsic evidence of custom or usage to show that words employed in a contract unambiguous on their face have a special trade significance, 89 ALR 1228. Agreement by lessee with third person permitting use of the property as violation of covenant in lease against assigning or subletting, 89 ALR 1325. Validity of agreement to make loans or advances as affected by objection of uncertainty or indefiniteness, 89 ALR 1364. Death of insured after default in payment of premiums within the period allowed for exercise of option as to benefits without having exercised option, 89 ALR 1465. Construction and application of statute or ordinance relating to wages of persons employed on public work, 93 ALR 1249. Construction and effect of promise to pay when promisor is able, 94 ALR 721. Criterion of health for purposes of warranty or condition in insurance contract, 100 ALR 362. Specification in employment contract of grounds or causes of discharge as exclusive of other grounds or causes, 100 ALR 507. Question whether express contract was made as one for court or jury when not evidenced by formal instrument but in whole or part by informal writings, 100 ALR 969. Construction and effect of bond or other agreement to protect mortgagee against prior tax or other liens, or failure to make or complete improvements or repairs, and measure of damages for breach thereof, 103 ALR 1395. Municipal ordinance as within rule that every contract is made with reference to existing law, 110 ALR 1048. Admissibility or oral or extrinsic evidence on question of liability on bill of exchange, promissory note, or other contract where signature is followed by word or abbreviation which may be either descriptive or indicative of contracting character, 113 ALR 1364. Who is dependent of insured within contract of fraternal or benevolent society, 113 ALR 1518. Rights in respect of proceeds of life insurance under policy naming creditor as beneficiary, 115 ALR 741. Construction, scope, and application of words descriptive of property in statute relat-

regarding payment of taxes or assessments by mortgagee, 74 ALR 506. Sublease as breach of covenant against assignment, 74 ALR 1018. Effect of value limitation clause in bill of lading or shipping receipt for goods misdescribed therein or not received by carrier, 74 ALR 1382. Effect of recitals or provisions of bond to secure performance of contract as an interpretation of the terms of the contract, 76 ALR 941. Validity of provisions of construction contract referring questions to architect, where latter is under guaranty to keep contract below certain sum, 77 ALR 1130. Liability of sureties on bond of guardian, executor, administrator, or trustee for defalcation or deficit occurring before bond was given, 82 ALR 585. Liability of accident insurer as affected by insured’s failure to take precautions to avoid effects of accident, 82 ALR 694. Death or injury while engaged in an athletic game or contest (baseball, basketball, bowling, boxing, fencing, football, golf, tennis, wrestling, automobile racing, bicycle racing, horse racing, steeplechase riding, etc.) as within coverage of life or accident insurance policy, 82 ALR 732. Time to be considered in determining whether a case is within the earlier or later provisions of the workmen’s compensation act, as regards compensation recoverable, 82 ALR 1244. Rights under gas or oil lease or grant, or operating agreement, in respect of wet or casing-head gas or gasoline recovered therefrom, 82 ALR 1304. Restrictive covenants against conducting business or practicing profession as covering dealings or attempts to deal outside the restricted district with persons residing within the district, 87 ALR 329. Instrument for purchase of land as a contract or an option, 87 ALR 563. Validity, construction, and effect of provision in real estate mortgage as to rents and profits, 87 ALR 625; 91 ALR 1217. Liability of lessee’s assignee to lessor for rent accruing after assignment by him, in the absence of assumption of covenants of lease, 89 ALR 433; 148 ALR 196. Admissibility of parol or extrinsic evidence on question whether time was of essence of written contract, 89 ALR 920.

Burn as an accident or caused by accidental means within coverage of life or accident insurance policy, 138 ALR 1514. Enlistment or mustering of minors into military service, 153 ALR 1420; 155 ALR 1451; 157 ALR 1449. Validity, construction, and effect of statutory or contractual provision in, government construction contract referring to Secretary of Labor questions respecting wage rates or classification of employees of contractor, 163 ALR 1300. Formal or written instrument as essential to completed contract where the making of such instrument is contemplated by parties to verbal or informal agreement, 165 ALR 756. Meaning of term ‘‘duration’’ or ‘‘end of war’’ employed in contract, 168 ALR 173. Right of contingent beneficiary to proceeds of life policy upon death of direct or primary beneficiary after death of insured, 172 ALR 642. Extrinsic evidence regarding character and size of trees contemplated by written timber contract or lease, 173 ALR 518. Title to unknown valuables secreted in articles sold, 4 ALR2d 318. Tax liabilities as within agreement for assumption or payment of another’s obligations, 4 ALR2d 1314. Granting to lessee of ‘‘first’’ privilege or right to release or to renewal or extension of tenancy period as conditioned upon lessor’s willingness to release, 6 ALR2d 820. Insurance of bank against larceny and false pretenses, 15 ALR2d 1006. Risks and losses covered by lightning insurance, 15 ALR2d 1017; 47 ALR4th 772. What constitutes a ‘‘sale’’ of real property within purview of clause in lease making renewal clause inoperative in event of such contingency, 15 ALR2d 1040. Question, as one of law for court or of fact for jury, whether oral promise was an original one or was a collateral promise to answer for the debt, default, or miscarriage of another, 20 ALR2d 246. Width of way created by express grant, reservation, or exception not specifying width, 28 ALR2d 253. Construction and effect of clause in liability policy voiding policy while insured vehicles are being used more than a specified distance from principal garage, 29 ALR2d 514.

ing to liability of innkeeper to guest for loss or damage to property, 115 ALR 1088. Depreciation of value of insured building because of age at time of loss as a factor in determining the amount of a partial loss under insurance policy, 115 ALR 1169. Provision of lease authorizing its termination by lessor in event of insolvency, bankruptcy, or receivership of lessee, 115 ALR 1189; 168 ALR 504. Indemnity provisions of accident policy, or life policy with accident or disability features, in respect of insured’s disability, death, etc., as alternative or cumulative, 115 ALR 1221. Validity of option provisions in life insurance policy which vary from (or add to, or exclude) statutory provisions, 115 ALR 1389. Waiver of arbitration provision in contract, 117 ALR 301; 161 ALR 1426. Passing of title to personal property under contract of sale, as affected by fact that contract covers both real and personal property, 117 ALR 395. Validity and effect of contract or deed which purports to cover or convey an undivided interest in land without specifying the amount of the interest, 123 ALR 912. Validity, construction, and application of insecurity clause in chattel mortgage, 125 ALR 313. Sufficiency of bookkeeping to satisfy condition of insurance policy, 125 ALR 350. Traffic violation as violation of law within provision of life or accident insurance policy or certificate excepting death or injury due to violation of law, 125 ALR 1104. Construction and effect of ‘‘strike clause’’ of contract, 125 ALR 1304. Scope and application of provisions of accident policy, or accident feature of life policy, relating to accident in connection with automobile or other motor vehicle, 138 ALR 404; 78 ALR2d 1044. Rights and remedies as to premium where insured was under mistaken belief regarding value, nature, or existence of property subject of insurance, 138 ALR 924. Notice from insurer to effect that employment of agency of third person is unnecessary in collecting insurance, 138 ALR 1374. Validity and enforceability of agreement, between insurer and beneficiary of insurance electing to leave proceeds in insurer’s hands, as to ultimate disposition of proceeds, 138 ALR 1483.

Subletting or renting party of premises as violation of lease provision as to subletting, 56 ALR2d 1002. Effect of failure to contract for sale or exchange of real estate to specify time for giving of possession, 56 ALR2d 1272. Construction and effect of contract for sale of commodity or goods wherein quantity is described as ‘‘about’’ or ‘‘more or less’’ than an amount specified, 58 ALR2d 377. Construction and effect of agreement relating to salary of partners, 66 ALR2d 1023. Duration of liability to pay royalty under agreement for publication of material subject to copyright, not limited as to time, 69 ALR2d 1317. Construction and effect of lease provision relating to attorneys’ fees, 77 ALR2d 735. Duty of lessee or assignee of mineral lease other than lease for oil and gas, as regards marketing or delivery for marketing of mineral products, 77 ALR2d 1058. Scope and application of provisions of accident policy, or accident feature of life policy, relating to accident in connection with automobile or other motor vehicle, 78 ALR2d 1044. Right of lessor to cancel oil or gas lease for breach of implied obligation to explore and develop further after initial discovery of oil or gas, in absence of showing reasonable expectation of profit to lessee from further drilling, 79 ALR2d 792. Applicability of iron safe clause where business is temporarily closed or unattended, 79 ALR2d 877. False statements favorable to defense, made and persisted in by insured, as breach of cooperation clause, 79 ALR2d 1040. Broker’s right to commission on renewal, extension, or renegotiation of lease, 79 ALR2d 1063. Construction of standing timber contract providing that trees to be cut and order of cutting shall be as selected by seller, 79 ALR2d 1243. Rights and liabilities under ‘‘uninsured motorist’’ coverage, 79 ALR2d 1252. Provision of accident or health insurance policy that insured shall be under care of physician or surgeon, 84 ALR2d 375. Liability as between lessor and lessee, where lease does not specify, for taxes and assessments, 86 ALR2d 670. Water well-drilling contracts, 90 ALR2d 1346.

Time within which insurer must make election to rebuild, repair, or replace insured property, 29 ALR2d 720. Animal or livestock insurance: risks and losses covered, 29 ALR2d 790; 47 ALR4th 772. When is one confined to house within meaning of health or accident insurance policy, 29 ALR2d 1408. Construction and effect of severance or dismissal pay provisions of employment contract or collective labor agreement, 40 ALR2d 1044. Rights and liabilities as between employer and employee with respect to general pension or retirement plan, 42 ALR2d 461; 46 ALR3d 464. Validity, construction, and effect of limited liability or stipulated damages clause in fire or burglar alarm service contract, 42 ALR2d 591. Construction and effect of clause in burglary policy requiring alarm system, 42 ALR2d 733. Coverage, construction, and effect of medical payments and funeral expense clauses of liability policy, 42 ALR2d 983. Validity, construction and effect of contract, option, or provision for repurchase by vendor, 44 ALR2d 342. Construction and effect of provision in private building and construction contract that work must be done to satisfaction of owner, 44 ALR2d 1114. What constitutes reservation of right to terminate, rescind, or modify contract, as against third party beneficiary, 44 ALR2d 1270. Sufficiency, under the statute of frauds, of description or designation of land in contract or memorandum of sale which gives right to select the tract to be conveyed, 46 ALR2d 894. Liability of one cutting and removing timber under deed or contract for failure to remove or dispose of debris, trimmings, or tops, 56 ALR2d 400. Mortgage, lien, or other encumbrance as constituting increase of hazard so as to avoid fire or other property insurance policy, 56 ALR2d 422. Discharge or retirement of employee because of age or physical disability as within provision of collective bargaining contract limiting employer’s right to discharge employees, 56 ALR2d 991.

policy provision specifically covering loss or damage from smoke, smudge, or soot, 11 ALR3d 901. Oil and gas: ‘‘dry hole’’ as ‘‘well’’ within undertaking to drill well, 15 ALR3d 450. Disability insurance or provision: clause requiring notice of claim within specified time or as soon as reasonably possible, or the like, 17 ALR3d 530. Insurer’s statements as to amount of dividends, accumulations, surplus, or the like as binding on insurer or merely illustrative, 17 ALR3d 777. Loss by heat, smoke, or soot without external ignition as within standard fire insurance policy, 17 ALR3d 1155. What are ‘‘fixtures’’ within provision of property insurance policy expressly extending coverage to fixtures, 17 ALR3d 1381. Effect on compensation of architect or building contractor of express provision in private building contract limiting the cost of the building, 20 ALR3d 778. Construction and effect of affirmative provision in contract of sale by which purchaser agrees to take article ‘‘as is,’’ in the condition in which it is, or equivalent term, 24 ALR3d 465. Validity, construction, and enforcement of business opportunities or ‘‘finder’s fee’’ contract, 24 ALR3d 1160. Validity and construction of liability policy provision requiring insured to reimburse insurer for payments under policy, 29 ALR3d 291. Breach or repudiation of collective labor contract as subject to, or as affecting right to enforce, arbitration provision in contract, 29 ALR3d 688. What constitutes improvements, alterations, or additions within provisions of lease permitting or prohibiting tenant’s removal thereof at termination of lease, 30 ALR3d 998. Trivial nature of personal injury as excusing compliance with liability insurance policy provision requiring notice to insurer, 39 ALR3d 593. Validity and construction of accident insurance policy provision making benefits conditional on disability occurring immediately, or at once, or within specified time of accident, 39 ALR3d 1026. Validity and construction of provision in accident insurance policy limiting coverage

What is included within term ‘‘mine’’ as used in written instrument, 92 ALR2d 868. Builder’s risk insurance policies, 94 ALR2d 221; 97 ALR3d 1270; 22 ALR4th 701. Agister’s liability for injury, weight loss, or death of pastured animals, 94 ALR2d 319. Person who signs contract but is not named in body thereof as party to contract and liable thereunder, 94 ALR2d 691. Liability of employer for agreed advances of drawing account which exceed commissions or share of profits earned, 95 ALR2d 504. Validity, construction, and effect of lessor’s covenant against use of his other property in competition with the lessee-covenantee, 97 ALR2d 4. Duty of construction contractor to indemnify contractee held liable for injury to third person, in absence of express contract for indemnity, 97 ALR2d 616. Construction and effect of provision in contract for sale of realty by which purchaser agrees to take property ‘‘as is’’ or in the condition in which it is, 97 ALR2d 849. Construction of term ‘‘result from’’ or ‘‘as a result of’’ pregnancy, used in life, accident, health, or hospitalization policy, 97 ALR2d 1068. Right to reward of furnisher of information leading to arrest and conviction of offenders, 100 ALR2d 573. Contractor’s liability for alleged breach of contract for construction of swimming pool, 1 ALR3d 870. Effect of stipulation, in public building or construction contract, that alterations or extras must be ordered in writing, 1 ALR3d 1273. Choice of law in construction of insurance policy originally governed by law of one state as affected by modification, renewal, exchange, replacement, or reinstatement in different state, 3 ALR3d 646. Contract, provision thereof, or stipulation waiving wife’s right to counsel fees in event of divorce or separation action, 3 ALR3d 716. Extent and reasonableness of use of private way in exercise of easement granted in general terms, 3 ALR3d 1256. Insurance: construction of ‘‘sane or insane’’ provision of suicide exclusion, 9 ALR3d 1015. Construction, as to coverage, of insurance

What conditions constitute ‘‘disease’’ within terms of life, accident, disability, or hospitalization policy, 61 ALR3d 822. What constitutes ‘‘one accident’’ or ‘‘one sickness’’ or related conditions or recurrences within provisions of health, accident, and disability insurance, 61 ALR3d 884. Grant, lease, exception, or reservation of oil and/or gas rights as including oil shale, 61 ALR3d 1109. What constitutes ‘‘trailer’’ within coverage or exclusion provision of automobile liability policy, 65 ALR3d 804. ‘‘Vehicle’’ or ‘‘land vehicle’’ within meaning of insurance policy provision defining risks covered or excepted, 65 ALR3d 824. Coverage and exclusions under hospital professional liability or indemnity policy, 65 ALR3d 969. What constitutes ‘‘direct loss’’ under windstorm insurance coverage, 65 ALR3d 1128. Validity and construction of contract exempting agricultural fair or similar bailee from liability for articles delivered for exhibition, 69 ALR3d 1025. Construction of agreement between real estate agents to share commissions, 71 ALR3d 586. Construction of provision, in compromise and settlement agreement, for payment of costs as part of settlement, 71 ALR3d 909. What constitutes ‘‘collapse’’ of a building within coverage of property insurance policy, 71 ALR3d 1072. Necessity for payment or tender of purchase money within option period in order to exercise option, in absence of specific time requirement for payment, 71 ALR3d 1201. Conflict of laws: what law governs validity and construction of written guaranty, 72 ALR3d 1180. Validity and construction of ‘‘no damage’’ clause with respect to delay in building or construction contract, 74 ALR3d 187. Construction and application of automatic sprinkler provision in fire insurance policy, 79 ALR3d 539. Construction and application of liability or indemnity policy on civil engineer, architect, or the like, 83 ALR3d 539; 14 ALR5th 695. Requirements as to certainty and completeness of terms of lease in agreement to lease, 85 ALR3d 414.

for death or loss of member to death or loss occurring within specified period after accident, 39 ALR3d 1311. Who is ‘‘executive officer’’ of insured within coverage of liability insurance policy, 39 ALR3d 1434. Construction of provision in real-estate mortgage, land contract, or other security instrument for release of separate parcels of land as payments are made, 41 ALR3d 7. Private pension plan: construction of provision authorizing employer to terminate or modify plan, 46 ALR3d 464. Landlord and tenant: tenant’s rights under provision giving him pre-emptive right to purchase on terms offered by third person, where third person’s offer is withdrawn before tenant exercises pre-emptive right, 46 ALR3d 1377. Validity and construction of restrictive covenant controlling architectural style of buildings to be erected on property, 47 ALR3d 1232. Landlord and tenant: construction of provision of lease providing for escalation of rental in event of tax increases, 48 ALR3d 287. Validity, construction, and application of entirety clause in oil or gas lease, 48 ALR3d 706. What constitutes ‘‘actual trial’’ under policy provision conditioning liability insurer’s obligation upon determination of insured’s liability by judgment after actual trial, 48 ALR3d 1082. Property insurance on aircraft; risks and losses covered, 48 ALR3d 1120. Private pension plans: statements in literature distributed to employees as controlling over provisions of general plan, 50 ALR3d 1270. Construction of contract for installation of vending machine on another’s premises, 53 ALR3d 471. Calculation of rental under commercial percentage lease, 58 ALR3d 384. Validity and enforceability of provisions for renewal of lease at rental to be fixed by subsequent agreement of parties, 58 ALR3d 500. Validity, construction, and effect of clause in franchise contract prohibiting transfer of franchise or contract, 59 ALR3d 244. Construction and operation of fee payment provisions of employment agency contract, 61 ALR3d 375.

Who is ‘‘executive officer’’ of insured within liability insurance policy, 1 ALR5th 132. What entities or projects are ‘‘public’’ for purposes of state statutes requiring payment of prevailing wages on public works projects, 5 ALR5th 470. Construction and application of ‘‘business pursuits’’ exclusion provision in general liability policy, 35 ALR5th 375. Validity, construction, and application of provision in automobile liability policy excluding from coverage injury to, or death of, employee of insured, 43 ALR5th 149. Who is ‘‘employee,’’ ‘‘workman,’’ or the like, of contractor subject to state statute requiring payment of prevailing wages on public works projects, 5 ALR5th 513. International Union of Operating Engineers, Local 18 v. Dan Wannemacher Masonry Co., 5 ALR5th 1106. What are ‘‘prevailing wages,’’ or the like, for purposes of state statute requiring payment of prevailing wages on public works projects, 7 ALR5th 400. Construction and effect of provision in contract for sale of realty by which purchaser agrees to take property ‘‘as is’’ or in its existing condition, 8 ALR5th 312. What projects involve work subject to state statutes requiring payment of prevailing wages on public projects, 10 ALR5th 337. Employees’ private right of action to enforce state statute requiring payment of prevailing wages on public works projects, 10 ALR5th 360. Liability of contractor who abandons building project before completion for liquidated damages for delay, 15 ALR5th 376.

Excess of payment for one period as applicable to subsequent period under contract of mortgage providing for periodic payments, 89 ALR3d 947. Right of architect to compensation under contractual provision that fee is to be paid from construction loan funds, 92 ALR3d 509. Modern status as to duration of employment where contract specifies no term but fixes daily or longer compensation, 93 ALR3d 659. Increase in tuition as actionable in suit by student against college or university, 99 ALR3d 885. Heart attack following exertion or exercise as within terms of accident provision of insurance policy, 1 ALR4th 1319. Debts included in provision of mortgage purporting to cover all future and existing debts (Dragnet Clause) - modern status, 3 ALR4th 690. Division of opinion among judges on same court or among other courts or jurisdictions considering same question, as evidence that particular clause of insurance policy is ambiguous, 4 ALR4th 1253. Scope of clause excluding from contractor’s or similar liability policy damage to property in care, or control of insured, 8 ALR4th 563. Insured’s duties respecting care of injured or ill animal covered by animal or livestock policy, 22 ALR4th 1053. Liability of person furnishing, installing, or servicing burglary or fire alarm system for burglary or fire loss, 37 ALR4th 47. Livestock or animal insurance: risks and losses, 47 ALR4th 772.