O.C.G.A. § 13-4-23 (2019)

Annotations

JUDICIAL DECISIONS When defendant’s anticipatory breach is established, plaintiff has legal excuse for failure to fully perform. Whitley Constr. Co. v. Virginia Supply & Well Co., 99 Ga. App. 419, 108 S.E.2d 819 (1959). Offer to perform by one and refusal to perform by other, gives former right of action. Booth v. Saffold, 46 Ga. 278 (1872).

Right of action on mutual covenant accrues on performance or offer thereof. - When covenants are mutual and dependent, a right of action accrues to either party on one’s performance or on one’s offer to perform, if performance is defeated by fault of other party. Booth v. Saffold, 46 Ga. 278 (1872).

Refusal of proper tender negates collateral benefits of agreement. - If the debtor makes a proper tender of the full amount due and the tender is refused, the creditor loses any collateral benefits the creditor may have under the agreement and the tender constitutes payment in full. Gaston v. Tate, 169 Ga. App. 298, 312 S.E.2d 372 (1983). Performance or tender excused by other party’s repudiation or conduct rendering it useless or impossible. - When contract provides that there must be tender of money or performance of some obligation, party bound to make the tender or perform obligation may be relieved, and tender and obligation held to have been waived, if other party to contract repudiates it, by act or word, or takes position which would render tender or performance of obligation imposed useless or impossible. Rives E. Worrell Co. v. Key Sys., 147 Ga. App. 383, 248 S.E.2d 686 (1978). To constitute a defense to breach of a lease action the defendant’s nonperformance must have been caused by conduct of the plaintiff which made the defendant’s performance useless or impossible. Ott v. Vineville Mkt., Ltd., 203 Ga. App. 80, 416 S.E.2d 362 (1992). Since the parties’ verbal expressions and conduct demonstrated an intent to be bound by an oral agreement for the sale of two sports teams and the operating rights to a sports arena, the seller’s argument that the oral contract failed because the buyer had not obtained required approvals from the respective sports leagues failed because the seller’s conduct in executing an agreement with another entity prevented the buyer from obtaining the league approvals. Turner Broad. Sys. v. McDavid, No. A09A2314, 2010 Ga. App. LEXIS 317 (Mar. 26, 2010). No evidence to show competition made business impossible or useless. - Although nearby competition seemingly could hamper a business’ profitability, defendant’s evidence failed to create a credible issue of fact on whether this competition made defendant’s business’ operation impossible or useless, therefore, the trial court did not err in granting summary judgment to the plaintiff. Ott v. Vineville Mkt., Ltd., 203 Ga. App. 80, 416 S.E.2d 362 (1992). One prevented from full performance by actions of other party may recover for part

performed. - Coppedge v. Financial Servs. Group Corp., 150 Ga. App. 849, 258 S.E.2d 654 (1979). If both parties contributed to the delay in performance, but defendant’s breaches were in no way caused by plaintiff ’s conduct, O.C.G.A. § 13-4-23 did not apply to excuse defendant’s breaches. CRS Sirrine, Inc. v. Dravo Corp., 219 Ga. App. 301, 464 S.E.2d 897 (1995). Section permits one to waive breach and sue in quantum meruit for services performed. - Party to contract who has partly performed by rendering valuable services may, if it appears that opposite party has repudiated and abandoned contract, or has prevented former from further performance, waive one’s right to recover for breach of contract, and, by treating contract as rescinded, maintain action in quantum meruit against other contracting party for value of services rendered. Weathercraft Co. v. Byrd, 32 Ga. App. 369, 123 S.E. 180 (1924). Improper tender excused when opposite party’s conduct waives obligation to tender. - Even when one party does not properly tender materials, the tendering party is relieved of that obligation when other party instructs the tendering party to keep materials where they are. Such conduct by receiving party amounts to waiver of tendering party’s contractual obligation to perform. Rives E. Worrell Co. v. Key Sys., 147 Ga. App. 383, 248 S.E.2d 686 (1978). No recovery of damages where delay in performance proximately caused by both parties. - When each party to contract proximately contributed to delay in performance, law does not provide for recovery or apportionment of damages occasioned thereby to either party. 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). Impossibility not due to act of God nor other party. - When the plaintiff contracts to perform covenants that are impossible, not because of an act of God or the conduct of the defendant, the failure to perform such covenants is as fatal to the plaintiff ’s right to recover as a breach of the contract for any other reason. J.C. Penney Co. v. Davis & Davis, Inc., 158 Ga. App. 169, 279 S.E.2d 461 (1981).

Guarantor estopped after guarantor acknowledged existence of actionable default. - Guarantor’s post-default agreements, in which guarantor acknowledged the existence of an actionable default in the payment of notes, estopped the guarantor from subsequently asserting that the initial declaration of the default was ‘‘wrongful and meritless.’’ Harrell v. Huntington Assocs., 190 Ga. App. 421, 379 S.E.2d 194 (1989). Demand for performance. - When an employee presented evidence showing performance on the employee’s part until the time the employee was allegedly terminated by the employer, it is immaterial whether the employee demanded performance by the employer under an employment contract. Gram Corp. v. Wilkinson, 210 Ga. App. 680, 437 S.E.2d 341 (1993). Offer to perform insufficient tender of performance. - When a seller failed to pay the closing costs under a buy-back provision in its contract with the buyers, the buyers were properly granted a declaratory judgment which held that the seller was responsible to pay the closing costs, and an offer to do so was insufficient to satisfy this duty, and did not satisfy O.C.G.A. § 13-4-24. Tullis Devs., Inc. v. 3M Constr., Inc., 282 Ga. App. 335, 638 S.E.2d 787 (2006). Failure to meet sales thresholds. - Defendant properly terminated the distributor’s agreement because plaintiff failed to meet certain sales thresholds in the agreement. Imps. Serv. Corp. v. GP Chems. Equity, LLC, 652 F. Supp. 2d 1292 (N.D. Ga. 2009). Lease contracts. - Because evidence was presented that a commercial lessee successfully terminated its lease only because it was forced out of business when the lessor refused to pay for stone it received from the lessee, the trial court properly held that the lessor was required to mitigate its damages. Allen v. Harkness Stone Co., 271 Ga. App. 397, 609 S.E.2d 647 (2004). Obligation to act excused. - Obligation of plaintiffs, a debtor, its affiliate, and a subsidiary, to act within a certain time under the terms of a securities purchase agreement was excused, under O.C.G.A. § 13-4-23, due to defendant’s failure to respond fully to plaintiffs’ requests for information because (1) an employee of plaintiffs could not have determined whether plaintiffs agreed or disagreed with defendant’s figures in two work-

ing capital statements without the information the employee requested from defendant; (2) the evidence did not establish that defendant cooperated with plaintiffs when they requested additional documentation and clarification; and (3) plaintiffs’ ability to perform their obligations under the agreement was hampered by defendant’s failure to provide necessary documents and answers to plaintiffs’ questions about defendant’s calculations. Allied Holdings, Inc. v. Cox (In re Allied Holdings, Inc.), No. 05-12515-CRM through 05-12537-CRM, 2009 Bankr. LEXIS 3603 (Bankr. N.D. Ga. Sept. 30, 2009). Cited in Cincinnati Glass & China Co. v. Stephens, 3 Ga. App. 766, 60 S.E. 360 (1908); Chamberlin v. Booth & McLeroy, 135 Ga. 719, 70 S.E. 569, 35 L.R.A. (n.s.) 1223 (1911); Johnson v. Bass, 142 Ga. 351, 82 S.E. 1053 (1914); White v. Sailors, 17 Ga. App. 550, 87 S.E. 831 (1916); Flake v. Bowman, 28 Ga. App. 443, 111 S.E. 747 (1922); Grolier Soc’y v. Freeman, 45 Ga. App. 465, 165 S.E. 290 (1932); Prudential Ins. Co. of Am. v. Ferguson, 51 Ga. App. 341, 180 S.E. 503 (1935); Bancroft v. Conyers Realty Co., 63 Ga. App. 106, 10 S.E.2d 286 (1940); McCoy v. Scarborough, 73 Ga. App. 519, 37 S.E.2d 221 (1946); Lloyd v. Norman, 77 Ga. App. 598, 49 S.E.2d 131 (1948); Anagnostis v. Alexandrou, 77 Ga. App. 742, 49 S.E.2d 774 (1948); Ellis v. Von Kamp, 100 Ga. App. 60, 110 S.E.2d 97 (1959); James H. Craggs Constr. Co. v. King, 274 F.2d 1 (5th Cir. 1960); Swanson v. Chase, 107 Ga. App. 295, 129 S.E.2d 873 (1963); State Hwy. Dep’t v. W.L. Cobb Constr. Co., 111 Ga. App. 822, 143 S.E.2d 500 (1965); Stokes v. Walker, 131 Ga. App. 550, 206 S.E.2d 564 (1974); Swindell v. Georgia State Dep’t of Educ., 138 Ga. App. 57, 225 S.E.2d 503 (1976); Cel-Ko Bldrs. & Developers, Inc. v. BX Corp., 140 Ga. App. 501, 231 S.E.2d 361 (1976); Trimier v. Atlanta Univ., Inc., 141 Ga. App. 546, 234 S.E.2d 342 (1977); United Car & Truck Leasing, Inc. v. Roberts, 150 Ga. App. 369, 257 S.E.2d 905 (1979); Complete Trucklease, Inc. v. Auto Rental & Leasing, Inc., 160 Ga. App. 568, 288 S.E.2d 75 (1981); Starling v. Housing Auth., 162 Ga. App. 852, 293 S.E.2d 392 (1982); Thompson v. Crouch Contracting Co., 164 Ga. App. 532, 297 S.E.2d 524 (1982); Georgia Power Co. v. Maxwell, 169 Ga. App. 324, 312 S.E.2d 645

(1983); Southern Bus. Machs. of Savannah, Inc. v. Norwest Fin. Leasing, Inc., 194 Ga. App. 253, 390 S.E.2d 402 (1990); Williams Tile & Marble Co. v. Ra-Lin & Assocs., 206 Ga. App. 750, 426 S.E.2d 598 (1992); TMS Ins. Agency, Inc. v. Mitchell, 208 Ga. App. 614, 431 S.E.2d 391 (1993); Roberson v. Eichholz, 218 Ga. App. 511, 462 S.E.2d 382 (1995); C & S/Sovran Corp. v. First Fed. Sav.

Bank, 266 Ga. 104, 463 S.E.2d 892 (1995); Taliafaro, Inc. v. Rose, 220 Ga. App. 249, 469 S.E.2d 246 (1996); Raburn Bonding Co. v. State, 244 Ga. App. 386, 535 S.E.2d 763 (2000); Camp v. Peetluk, 262 Ga. App. 345, 585 S.E.2d 704 (2003); Eudy v. Universal Wrestling Corp., 272 Ga. App. 142, 611 S.E.2d 770 (2005).

RESEARCH REFERENCES ALR. - Appointment of receiver as excuse for nonperformance of contract, 33 ALR 499. Claim in receivership for breach of contract which was still executory when receiver was appointed, 33 ALR 508. Early death of vendor as affecting enforce-

ment of contract to convey in consideration of contract for his or her support for life, 49 ALR 601. Necessity of showing damage to establish fraud as defense to action on contract, 91 ALR2d 346.