O.C.G.A. § 13-6-9 (2019)

Annotations

JUDICIAL DECISIONS Tortious acts not necessary for recovery. - Even though the statutory definitions of general and special damages (see O.C.G.A. § 51-12-2) refer to tortious acts, general and special damages also may be recovered in contract actions if the damages are not remote or consequential and arose naturally and according to the usual course of things

from the breach. Bill Parker & Assocs. v. Rahr, 216 Ga. App. 838, 456 S.E.2d 221 (1995). Incurred obligations to pay fall under this statute. Those obligations must be such as arise in the usual course of events within contemplation of parties. Murray v. Americare-Medical Designs, Inc., 123 Ga.

App. 557, 181 S.E.2d 871 (1971) (see O.C.G.A. § 13-6-9). Allegation that obligation has been incurred suffices, although such obligation remains unpaid. - Allegation in petition, that expense of hiring has been contracted for, is sufficient allegation of expense incurred, even though hiring has not been paid for. Murphey v. Northeastern Constr. Co., 31 Ga. App. 715, 121 S.E. 848 (1924). Recovery of profits under former Civil Code 1895, § 3799 (see O.C.G.A. § 13-6-2) prevented recovery of expenses under former Civil Code 1895, § 3806 (see O.C.G.A. § 13-6-9). Anderson v. Hilton & Dodge Lumber Co., 121 Ga. 688, 49 S.E. 725 (1905). Cost of completion of building contract recoverable. Smith v. Aultman, 30 Ga. App. 507, 118 S.E. 459, cert. denied, 30 Ga. App. 801 (1923). Costs of attending arbitration proceedings recoverable. McKenzie v. Mitchell, 123 Ga. 72, 51 S.E. 34 (1905). Attorney’s fees for examining title recoverable. Horine v. Hicks, 25 Ga. App. 802, 104 S.E. 922 (1920). Improvements by tenant necessary for utilization of premises are recoverable in event of constructive eviction. - Net profit to landlord in permanent improvements made by tenant in order to utilize premises for purpose for which rented is recoverable in case of constructive eviction. Hathaway v. Gorfine, 134 Ga. App. 748, 216 S.E.2d 338 (1975). Necessary expenses may be sought in actions for breach of warranty of title to realty. State Mut. Ins. Co. v. McJenkin Ins. & Realty Co., 86 Ga. App. 442, 71 S.E.2d 670 (1952), disapproved, 137 Ga. App. 771, 225 S.E.2d 88 (1976). Tenant may setoff expenses of repairing premises in action for rent when landlord was under duty to repair by provisions in lease. McNaughton v. Stephens, 8 Ga. App. 545, 70 S.E. 61 (1911). Burden of proof. - It is incumbent on the plaintiff to prove that each of the items of expense incurred by the plaintiff was necessary in obtaining such as the plaintiff was entitled to have under the plaintiff ’s

contract. Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640, 278 S.E.2d 182 (1981). Evidence must show how and why expenses incurred were necessary to performance of contract. - Evidence that plaintiff incurred expenses in making trips and telephone calls in preparing to improve premises pursuant to option to do so contained in lease did not show necessity for such expenses, since it did not appear how and why it was necessary to performance of contract by plaintiff that such trips and telephone calls be made. Price v. Burns, 43 Ga. App. 821, 160 S.E. 531 (1931). Improvements not removable. - O.C.G.A. § 13-6-9 was particularly germane because, in compliance with terms of the contract, expenses were incurred to make improvements, and most of the improvements were not removable. Akhtar v. Food & Gas, Inc., 225 Ga. App. 255, 483 S.E.2d 359 (1997). Proof of local custom to pay certain expenses suffices under O.C.G.A. § 13-6-9. - Proof of local custom to pay storage in addition to purchase price, as part of contract of purchase, is evidence of such expenses. Maddox v. Washburn-Crosby Milling Co., 135 Ga. 539, 69 S.E. 821 (1910). Cited in Durden v. Carhart & Bro., 41 Ga. 76 (1870); Butler v. Moore, 68 Ga. 780, 45 Am. R. 508 (1882); Fontaine v. Baxley, Boles & Co., 90 Ga. 416, 17 S.E. 1015 (1892); Mitchell v. Henry Vogt Mach. Co., 3 Ga. App. 542, 60 S.E. 295 (1908); Hardwood Lumber Co. v. Adam & Steinbrugge, 134 Ga. 821, 68 S.E. 725, 32 L.R.A. (n.s.) 192 (1910); Steinhauer v. Thompson, 16 Ga. App. 470, 85 S.E. 677 (1915); Croom v. Allen, 145 Ga. 347, 89 S.E. 199 (1916); Freeman v. Petty, 22 Ga. App. 199, 95 S.E. 737 (1918); Garcia S. en C. v. Taggart Coal Co., 27 Ga. App. 204, 108 S.E. 72 (1921); Anderson, Clayton & Co. v. Mangham, 32 Ga. App. 152, 123 S.E. 159 (1924); Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458 (1939); Crosswell v. Arten Constr. Co., 152 Ga. App. 162, 262 S.E.2d 522 (1979); Scott v. Wells Fargo Home Mtg., Inc., 281 Bankr. 404 (Bankr. M.D. Ga. 2002); Hopper v. M & B Builders, Inc., 261 Ga. App. 702, 583 S.E.2d 533 (2003).

RESEARCH REFERENCES Am. Jur. 2d. - 22 Am. Jur. 2d, Damages, § 179 et seq. C.J.S. - 25 C.J.S., Damages, §§ 62 et seq. ALR. - Reduction of claim under contract as affecting right to interest, 89 ALR 678. Right to recover, in action for breach of

contract, expenditures incurred in preparation for performance, 17 ALR2d 1300. Measure and element of damages recoverable from vendor where there has been a mistake as to amount of land conveyed, 94 ALR3d 1091.