O.C.G.A. § 13-6-1 (2019)

Annotations

JUDICIAL DECISIONS Absent provision for liquidated damages, damages accruing by reason of breach shall serve as compensation. - When no agreement fixing amount of damages in case of breach of contract is embraced in contract itself, damages accruing to either party by reason of breach are such as will compensate

the party for injury sustained. Spalding Constr. Co. v. Simon, 36 Ga. App. 723, 137 S.E. 901 (1927). Injured party to be placed in position party would have held had breach not occurred. - Law always seeks to give a remedy commensurate with injury. Injured party is

to be placed, as near as may be, in situation the injured party would have occupied if wrong had not been committed. Georgia Power & Light Co. v. Fruit Growers Express Co., 55 Ga. App. 520, 190 S.E. 669 (1937). Plaintiff was entitled only to be placed in the position plaintiff would have been had defendant performed defendant’s part of the contract. Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640, 278 S.E.2d 182 (1981). Injured party cannot be placed in better position than injured party would have held had breach not occurred. Lastinger v. City of Adel, 69 Ga. App. 535, 26 S.E.2d 158 (1943); Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640, 278 S.E.2d 182 (1981). Evidence of reasonable cost to correct fraudulently concealed defects will authorize award of damages. SCM Corp. v. Thermo Structural Prods., Inc., 153 Ga. App. 372, 265 S.E.2d 598 (1980). When damage claimed is solely to building or structure, measure of damages is cost of restoration. Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531 (1980). Discussion of proof of damage and evidentiary issues. - See McDow v. Dixon, 138 Ga. App. 338, 226 S.E.2d 145 (1976). Damage award for a breach of a covenant not to compete cannot be supported by a contractual provision allocating $10,000.00 of the total purchase price to the covenant since there is nothing in the contract to indicate that this was intended to be a liquidated damages provision. Webster v. Purdy, 166 Ga. App. 183, 303 S.E.2d 521 (1983). No error in instructions. - There was no error in giving instructions as to general principles regarding the recovery of damages in a contract case when there was no contention that the proper measure of those damages was not also given. Canal Ins. Co. v. Bryant, 173 Ga. App. 173, 325 S.E.2d 839 (1984); Kent v. Brown, 238 Ga. App. 607, 518 S.E.2d 737 (1999). Liquidated delay damages provision ineffective where conflicting with recovery available at law. - See Centex-Rodgers Constr. Co. v. McCann Steel Co., 206 Ga. App. 827, 426 S.E.2d 596 (1992). Lost profit damages not recoverable for breach of lease. - Trial court erred in

denying a lessee’s motion for directed verdict in an action by an assignee for damages relating to the expiration of a lease between the lessee and the lessors because the assignee had no entitlement to recover the assignee’s lost profits, based on allegations that the assignee could not operate the assignee’s own convenience store due to the lessee’s failure to timely vacate the premises, since it was limited through the assignment to recover only the remedies available to the lessors, i.e., failure to timely deliver possession and property damages. Golden Pantry Food Stores, Inc. v. Lay Bros., Inc., 266 Ga. App. 645, 597 S.E.2d 659 (2004). Cited in Martin v. Lott, 144 Ga. 660, 87 S.E. 902 (1916); Travers v. Macon Ry. & Light Co., 19 Ga. App. 15, 90 S.E. 732 (1916); Williams v. Hines, 26 Ga. App. 381, 107 S.E. 265 (1921); Colt Co. v. Hiland, 35 Ga. App. 550, 134 S.E. 142 (1926); Endsley v. Georgia Ry. & Power Co., 37 Ga. App. 439, 140 S.E. 386 (1927); Bankers’ Health & Life Ins. Co. v. James, 177 Ga. 520, 170 S.E. 357 (1933); McLendon v. Floyd, 59 Ga. App. 506, 1 S.E.2d 466 (1939); Speed Oil Co. v. Griffin, 73 Ga. App. 242, 36 S.E.2d 205 (1945); Irvindale Farms, Inc. v. W.O. Pierce Dairy, Inc., 78 Ga. App. 670, 51 S.E.2d 712 (1949); Farlow v. Jeffcoat, 78 Ga. App. 653, 52 S.E.2d 30 (1949); Fox Motor Co. v. Dillard, 80 Ga. App. 885, 57 S.E.2d 824 (1950); Brown v. Hilton Hotels Corp., 133 Ga. App. 286, 211 S.E.2d 125 (1974); Hood v. Hallman, 143 Ga. App. 507, 239 S.E.2d 194 (1977); Graham Bros. Constr. Co. v. C.W. Matthews Contracting Co., 159 Ga. App. 546, 284 S.E.2d 282 (1981); Hardin v. Macon Mall, 169 Ga. App. 793, 315 S.E.2d 4 (1984); Leader Nat’l Ins. Co. v. Smith, 177 Ga. App. 267, 339 S.E.2d 321 (1985); Fleetwood v. Wieuca N. Condominium Ass’n, 182 Ga. App. 15, 354 S.E.2d 623 (1987); Fields v. Smith, 190 Ga. App. 369, 378 S.E.2d 741 (1989); Eastgate Assocs. v. Piggly Wiggly S., Inc., 200 Ga. App. 872, 410 S.E.2d 129 (1991); Separk v. Caswell Bldrs., Inc., 209 Ga. App. 713, 434 S.E.2d 502 (1993); Camp v. Eichelkraut, 246 Ga. App. 275, 539 S.E.2d 588 (2000); Baldwin Rental Ctrs. Inc. v. Case Credit Corp., 277 Bankr. 152 (Bankr. S.D. Ga. 2000); Operations Mgmt. Int’l v. City of Forsyth, 288 Ga. App. 469, 654 S.E.2d 438 (2007).

RESEARCH REFERENCES Am. Jur. 2d. - 22 Am. Jur. 2d, Damages, § 178. C.J.S. - 17A C.J.S., Contracts, §§ 439, 459, 506, 546, 548, 549. ALR. - Power of equity to grant damages on enjoining breach of contract by seller of business not to engage in competing business, 31 ALR 1174. Loss of profits as damages for breach of contract in relation to advertising, 41 ALR 198. Valuation clause in carrier’s contract as limit, or as ratio, of recovery in case of partial loss, 41 ALR 450. Rate of exchange to be taken into account in assessing damages for breach of contract, 43 ALR 520; 50 ALR 1273; 105 ALR 640. Value of contractor’s own services not rendered because of breach, as deductible item in computing damages for breach of contract, 50 ALR 1397. Remedies for breach of decedent’s agreement to devise, bequeath, or leave property as compensation for services, 69 ALR 14; 106 ALR 742. Loss of or damage to crop as element of damages for breach of contract of sale or warranty of agricultural machinery or fertilizer, 69 ALR 748. Employer’s offer to take back employee wrongfully discharged as affecting former’s liability, 72 ALR 1049. Measure of damages for breach of contract for sale or purchase of equipment, supplies of gasoline, etc., used in operation of gasoline filling station, 81 ALR 99. Remedy and measure of recovery where insurer breaches its contract to pay indemnity periodically, 81 ALR 379; 99 ALR 1171. Rate of exchange to be taken into account in assessing damages for breach of contract or nonpayment of money obligation payable in foreign currency, 105 ALR 640. Remedies during promisor’s lifetime on

contract to convey or will property at death in consideration of support or services, 7 ALR2d 1166. Burden of proving value of relief from performing contract in suit based on defendant’s breach preventing or excusing full performance, 17 ALR2d 968. Right to recover, in action for breach of contract, expenditures incurred in preparation for performance, 17 ALR2d 1300. Measure or basis of attorney’s recovery on express contract fixing noncontingent fees, where he is discharged without cause or fault on his part, 54 ALR2d 604. ‘‘Exclusive right to sell’’ and other terms in real-estate broker’s contract as excluding owner’s right of sale, 88 ALR2d 936. Measure of damages for lessor’s breach of contract to lease or to put lessee in possession, 88 ALR2d 1024. Mental anguish as element of damages in action for breach of contract to furnish goods, 88 ALR2d 1367. Damages to franchisee for failure of franchisor of national brand or service to provide the services or facilities contracted for, 41 ALR3d 1436. Recovery for mental anguish or emotional distress, absent independent physical injury, consequent upon breach of contract in connection with sale of real property, 61 ALR3d 922. Measure of damages where vendor, after execution of contract of sale but before conveyance of property, removes part of property contracted for, 97 ALR3d 1220. Measure and elements of damages in action against physician for breach of contract to achieve particular result or cure, 99 ALR3d 303. Measure and elements of damages for breach of contract to lend money, 4 ALR4th 682. Recovery of anticipated lost profits of new business: post-1965 cases, 55 ALR4th 507.