O.C.G.A. § 13-1-7 (2019)

Annotations

JUDICIAL DECISIONS Absolute contracts. - The decline in quality of maintenance and repair under a lease agreement to provide, maintain, and repair trucks does not go to the whole consideration of the agreement and is not the breach of a dependent covenant which excuses lessee’s performance on the agreement. Complete Trucklease, Inc. v. Auto Rental & Leasing, Inc., 160 Ga. App. 568, 288 S.E.2d 75 (1981). An unconditional contract is one that has no condition in it. Dye v. Garrett, 78 Ga. 471, 3 S.E. 692 (1887); Rodgers v. Caldwell, 112 Ga. 635, 37 S.E. 866 (1901). Condition precedent requires perfor-

mance before performance by other party. Daniel v. Dalton News Co., 48 Ga. App. 772, 173 S.E. 727 (1934). Effect of indefinite and unenforceable collateral provisions. - Collateral provisions in a contract, though indefinite and thus unenforceable, will not destroy the validity of the contract if the main purpose of the parties is sufficiently clear to be capable of enforcement. Hartrampf v. Citizens & S. Realty Investors, 157 Ga. App. 879, 278 S.E.2d 750 (1981). Contract which embraces more than a stipulation may be in part unconditional, and partly conditional. Monk v. National

Pendergrast v. Greeson, 6 Ga. App. 47, 64 S.E. 282 (1909), for other cases, see 4 Cum. Dig. 38. ‘‘Time of the essence’’ clause. - Plaintiff ’s contention that a ‘‘time of the essence clause’’ warranted contract’s expiration upon failure to close realty sale on date specified was without merit, since there was no expiration date in the contract and no clause imposing a condition of closing by the date specified. Instead, contract’s provisions merely bound the parties to timely performance or response for breach. Separk v. Caswell Bldrs., Inc., 209 Ga. App. 713, 434 S.E.2d 502 (1993). Plaintiff must allege or excuse performance of any condition precedent. - When plaintiff ’s right to recover on contract depends on condition precedent to be performed by the plaintiff, the plaintiff, must allege and prove performance of such condition precedent, or allege sufficient legal excuse for its nonperformance. Daniel v. Dalton News Co., 48 Ga. App. 772, 173 S.E. 727 (1934); Mutual Benefit Health & Accident Ass’n v. Hulme, 57 Ga. App. 876, 197 S.E. 85 (1938), later appeal, 60 Ga. App. 65, 2 S.E.2d 750 (1939). When performance of condition precedent is in issue, court to instruct, without request, on statute. - When in suit on written contract, sole contested issue was whether or not admitted condition precedent of contract had been performed, it was duty of court, without request, to instruct jury as to substance of legal rules embodied in the statutes controlling conditional contracts and conditions precedent. Rice v. Harris, 52 Ga. App. 42, 182 S.E. 404 (1935). Independent covenants in contract. - In a suit by a manufacturer against a mill for breach of contract, it was error to direct a verdict for the mill. The manufacturer’s obligation to pay for tufted yarn and the mill’s obligation to return unused yarn and backing were independent covenants, not dependent ones; thus, a jury was authorized to find that the manufacturer’s breach did not excuse the mill’s breach. Beaulieu Group, LLC v. S&S Mills, Inc., 292 Ga. App. 455, 664 S.E.2d 816 (2008). Cited in Burnside v. Terry, 45 Ga. 621 (1872); Pope v. Harper, 40 Ga. App. 573, 150 S.E. 470 (1929); Jordan Realty Co. v. Chambers Lumber Co., 176 Ga. 624, 168 S.E. 601

Bank, 12 Ga. App. 253, 76 S.E. 278, later appeal, 13 Ga. App. 740, 79 S.E. 484 (1913). Discussion of application of section where covenants appear to be partially dependent. - See Brenard Mfg. Co. v. Kingston Supply Co., 22 Ga. App. 280, 95 S.E. 1028 (1918). Effect of contract to make a contract in the future. - Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect. Such an agreement lacks the necessary specificity and mutuality to be enforceable and, therefore, an absolute covenant cannot be made dependent upon it. Hartrampf v. Citizens & S. Realty Investors, 157 Ga. App. 879, 278 S.E.2d 750 (1981). One may contract to convey property in future, conditioned upon one’s acquisition of title thereto. Northington-Munger Pratt Co. v. Farmers’ Gin & Whse. Co., 119 Ga. 851, 47 S.E. 200, 100 Am. St. R. 210 (1904). Waiver of alimony conditioned on spouse’s compliance with agreement was conditional contract. - Fact that wife and husband executed written agreement in which she waived alimony and other claims, conditional upon his compliance with terms of agreement would not preclude her from obtaining temporary alimony, where condition of agreement required that he pay $50.00 in cash, and this amount was not paid or tendered. Fulenwider v. Fulenwider, 188 Ga. 856, 5 S.E.2d 20 (1939). Offer to pay upon receipt of possession and title not conditional upon vendor’s acquiring title. - Written offer of $1,000.00 for a described gin outfit and to pay for the gin outfit upon other party giving possession and good title, when duly accepted, is an absolute contract of bargain and sale and not conditional upon vendor being able to acquire title so as to make delivery. Northington-Munger Pratt Co. v. Farmers’ Gin & Whse. Co., 119 Ga. 851, 47 S.E. 200, 100 Am. St. R. 210 (1904). Stipulation in note for attorney’s fees ordinarily not unconditional contract. - Stipulation in promissory note to pay attorney’s fees is not, and by law cannot ordinarily be made an unconditional contract; for the payment of attorney’s fees is absolutely conditioned upon timely service of notice required by law. Savannah Bank & Trust Co. v. Purvis, 6 Ga. App. 275, 65 S.E. 35 (1909);

(1933); Campbell v. Rybert, 178 Ga. 28, 172 S.E. 52 (1933); Felton Beauty Supply Co. v. Levy, 198 Ga. 383, 31 S.E.2d 651 (1944); Webb v. National Life & Accident Ins. Co., 81 Ga. App. 198, 58 S.E.2d 548 (1950);

Whitehead v. Cranford, 210 Ga. 257, 78 S.E.2d 797 (1953); Sachs v. Swartz, 233 Ga. 99, 209 S.E.2d 642 (1974); Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 158 Ga. App. 249, 280 S.E.2d 144 (1981).

RESEARCH REFERENCES by breach by party seeking to enforce it, of his own obligations under the contract, 155 ALR 652. Provision in contract for sale of real property which makes performance conditional upon purchaser’s or third person’s satisfaction with condition of property, 167 ALR 411. Limitation to quantum meruit recovery, where attorney employed under contingent fee contract is discharged without cause, 92 ALR3d 690.

Am. Jur. 2d. - 17 Am. Jur. 2d, Contracts, §§ 320 et seq., 355, 361, 362, 443, 445, 449, 507. C.J.S. - 17 C.J.S., Contracts, § 10. ALR. - Acceptance of offer with condition which law would imply, 1 ALR 1508. Performance by vendor of covenant to make improvement as condition of his right to foreclose or forfeit contract, 128 ALR 656. Restrictive clause in employment or sales contract to prevent future competition or performance of services for other affected