O.C.G.A.

O.C.G.A. § 24-3-5 (2019)

Known usage

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

Find cases: SyfertCases citing this section GA-LEGlegis.ga.gov (official) JustiaJustia CornellLII Search CasesGoogle Scholar

Evidence of known and established usage shall be admissible to aid in the construction of contracts as well as to annex incidents.

History

Code 1981, § 24-3-5, enacted by Ga. L. 2011, p. 99, § 2/HB 24.

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3728, former Code 1868, § 3752, former Code 1873, § 3805, former Code 1882, § 3805, former Civil Code 1895, § 5206, former Civil Code 1910, § 5793, former Code 1933, § 38-506, and former O.C.G.A. § 24-6-5 are included in the annotations for this Code section. To make a proof of a custom as such proper testimony, it should appear by the proof itself that such custom is a general one, and that it is so well known and recognized within the sphere of the custom’s operation, as to be usually considered a part of all contracts made in that particular locality in business transactions to which such custom relates. Hardeman v. English, 79 Ga. 387, 5 S.E. 70, 1887 Ga. LEXIS 234 (1887) (decided under former Code 1882, § 3805). Custom can only be proved by word of mouth from the men engaged in the business. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691, 1955 Ga. App. LEXIS 824 (1955) (decided under former Code 1933, § 38-506). Evidence thereof is necessarily in parol. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691, 1955 Ga. App.

LEXIS 824 (1955) (decided under former Code 1933, § 38-506). Testimony of custom as matter of fact. - If a witness is shown to have knowledge of a custom, the witness can state what it is, not as a matter of opinion or law, but as a fact. Farmers Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 87 S.E. 804, 1916 Ga. LEXIS 53 (1916) (decided under former Civil Code 1910, § 5793). Custom is inadmissible when agreement is unambiguous. - Custom or usage, while admissible to explain an ambiguous written agreement, is inadmissible if repugnant to or inconsistent with a clear, express agreement. Stamey v. Western Union Tel. Co., 92 Ga. 613, 18 S.E. 1008, 1893 Ga. LEXIS 214 (1893) (decided under former Code 1882, § 3805). When the intent and meaning of the parties are clear, evidence of a usage to the contrary is irrelevant and unavailing. Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 167 S.E. 79, 1932 Ga. LEXIS 394 (1932) (decided under former Civil Code 1910, § 5793); TBS v. Europe Craft Imports, Inc., 186 Ga. App. 286, 367 S.E.2d 99, 1988 Ga. App. LEXIS 329 (1988) (decided under former O.C.G.A. § 24-6-5). While proof of a custom is sometimes

admissible to aid in the construction of a contract, such proof is not admissible when the contract is clear and unambiguous. Atlantic Fertilizer Co. v. Southern States Phosphate & Fertilizer Co., 53 Ga. App. 798, 187 S.E. 237, 1936 Ga. App. LEXIS 401 (1936) (decided under former Code 1933, § 38-506). Law cannot be changed. - Custom may sometimes be invoked as entering into a contract or supplying incidents, but not to change the law. Fidelity & Deposit Co. v. Butler, 130 Ga. 225, 60 S.E. 851, 1908 Ga. LEXIS 255 (1908) (decided under former Civil Code 1895, § 5206); Happ Bros. Co. v. Hunter Mfg. & Comm’n Co., 145 Ga. 836, 90 S.E. 61, 1916 Ga. LEXIS 507 (1916) (decided under former Civil Code 1910, § 5793). Usage cannot make a contract when there is none nor prevent the effect of the settled rules of law. Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 167 S.E. 79, 1932 Ga. LEXIS 394 (1932) (decided under former Civil Code 1910, § 5793). In the absence of knowledge of the existence of the custom, it cannot be said that there was any meeting of the minds on this item. Franco v. Bank of Forest Park, 118 Ga. App. 700, 165 S.E.2d 593, 1968 Ga. App. LEXIS 1505 (1968) (decided under former Code 1933, § 38506). If there was no evidence tending to show a contract by known and established usage, it was error to charge on known usage or custom. Craig v. Augusta Roofing & Metal Works, Inc., 78 Ga. App. 514, 51 S.E.2d 565, 1949 Ga. App. LEXIS 917 (1949) (decided under former Code 1933, § 38-506). Signing other party’s name to contract. - It was not admissible to show that it was the custom in a particular business for one party making sales, or its agent representing it in such a transaction, to sign the name of the other party to a contract therefor, so as to bind the latter. Happ Bros. Co. v. Hunter Mfg. & Comm’n Co., 145 Ga. 836, 90 S.E. 61, 1916 Ga. LEXIS 507 (1916) (decided under former Civil Code 1910, § 5793). Time of performance of contract. - Usage in business as to time of performance of contract for services is admis-

sible in suit for breach thereof. Beck v. Thompson & Taylor Spice Co., 108 Ga. 242, 33 S.E. 894, 1899 Ga. LEXIS 226 (1899) (decided under former Civil Code 1895, § 5206). Customs of warehousemen. - On the trial of a suit against warehousemen to recover the value of certain cotton which had been burned, and which plaintiff alleged the warehousemen had agreed to keep insured for plaintiff’s benefit, but had failed to do so, proof, in their behalf, that it was their custom to insure cotton only to the extent of the advances the warehousemen had made thereon and for the warehousemen’s own benefit, unless instructed by the customer to insure for full value, was primarily inadmissible; but after testimony had been allowed, without objection, in favor of plaintiff, tending to show it was the warehousemen’s custom to insure cotton on which the warehousemen had made advances to its full value, such proof was properly admitted. Hardeman v. English, 79 Ga. 387, 5 S.E. 70, 1887 Ga. LEXIS 234 (1887) (decided under former Code 1882, § 3805). If a general custom existed on the part of the warehouses in a certain municipality to insure to its full value the cotton of patrons stored with them with the necessary characteristics, patrons who stored cotton with one of such warehousemen, knowing of the custom, and relying upon the custom, can assert a duty on the part of such warehouseman to so insure one’s cotton. Farmers Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 87 S.E. 804, 1916 Ga. LEXIS 53 (1916) (decided under former Civil Code 1910, § 5793). It was not necessary that a witness should be a warehouseman in order to have sufficient knowledge to render the witness competent to testify as to the existence of such usage or custom among the warehouses of a particular town or city. If a person has been accustomed to deal with such warehouses, and to deposit cotton with those warehouses, so as to know those warehouses usage or custom on that subject, the witness was competent to testify as to that usage or custom. Farmers Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 87 S.E. 804, 1916 Ga. LEXIS

53 (1916) (decided under former Civil Code 1910, § 5793). Customs of insurance companies. - In this state, when life insurance companies deal with the assured for a time sufficient to make it their usage and custom to give notice to the assured of the date when the premiums fall due, and fail to give notice thereof, the policy will not be forfeited if, within a period so reasonably short as to show an intent to continue one’s policy, the assured take steps to inquire and pay the premium. Grant v.

Alabama Gold Life Ins. Co., 76 Ga. 575, 1886 Ga. LEXIS 62 (1886) (decided under former Code 1882, § 3805). It was well settled that insurers were bound to know the customs of a place where insurers transact business; and were assumed to have made contracts in reference to such customs. Todd v. German-American Ins. Co., 2 Ga. App. 789, 59 S.E. 94, 1907 Ga. App. LEXIS 524 (1907) (decided under former Civil Code 1895, § 5206).

RESEARCH REFERENCES Am. Jur. 2d. 29A Am. Jur. 2d, Evidence, §§ 1083, 1118, 1121. C.J.S. 32A C.J.S., Evidence, § 1149. ALR. “Contractual” consideration as regards parol evidence rule, 100 A.L.R. 17.

Validity and construction of “zoning with compensation” regulation, 41 A.L.R.3d 636.

Notes of Decisions

Cited in 184 cases, 1982–2020 · leading case: Peoples v. State, 757 S.E.2d 646 (Ga. 2014).

Sort: Relevance Newest Treatment

Peoples v. State, 757 S.E.2d 646 (Ga. 2014). · cites it 20× “, under former OCGA § 24-3-5, statements made by one conspirator were admissible in the trial of another co- conspirator to show their motive and intent “even though there is no clear proof there was a conspiracy in existence when [the statements were] made.”

Terrell v. State, 793 S.E.2d 411 (Ga. 2016). · cites it 10× “Specifically, he argues that the trial court erred in admitting Karimah’s statements under the co-conspirator hearsay exception formerly codified at OCGA § 24-3-5, 4 asserting that the State failed to establish his involvement in the conspiracy exclusive of Cain’s declarations.”

Thorpe v. State, 678 S.E.2d 913 (Ga. 2009). · cites it 10× “” Specifically, appellant asserts that the court improperly applied the hearsay exception for statements of co-conspirators, see OCGA § 24-3-5, by allowing the State to introduce the statement *610 without first establishing a prima facie case of conspiracy.”

Waldrip v. State, 482 S.E.2d 299 (Ga. 1997). · cites it 10× “See OCGA § 24-3-5; Denison v. State, 258 Ga. 690, 691 (1) ( 373 SE2d 503 ) (1988).”

Castell v. State, 301 S.E.2d 234 (Ga. 1983). · cites it 6× “We address, first, the defendant’s contentions that the declarations of alleged co-conspirator Addison were erroneously admitted, that the state failed to sufficiently corroborate the testimony of co-defendant Jones, and that the evidence was insufficient to support the verdict.”

Lord v. State, 820 S.E.2d 16 (Ga. 2018). · cites it 6× “2d 476 (1968) ; (b) the prosecution failed to make a prima facie showing of a conspiracy in order to render Braithwaite's statements through Miller's testimony admissible, thereby violating former OCGA § 24-3-5 ; 10 and (c) Miller's testimony about Braithwaite's statements…”

Grimes v. State, 766 S.E.2d 72 (Ga. 2014). · cites it 8× “’s apartment he saw an item of clothing with the words “Ho Hater” which he recognized as belonging to Slaton. This evidence was 9 Brantley’s statements to his ex-girlfriend were admissible pursuant to the coconspirator exception to the hearsay rule (see the former OCGA §…”

Livingston v. State, 486 S.E.2d 845 (Ga. 1997). · cites it 8× “The trial court deemed some of the statements admissible under the co-conspirator exception to the hearsay rule (OCGA § 24-3-5), and the remainder admissible under the “necessity” exception to the hearsay rule.”

Bundrage v. State, 462 S.E.2d 719 (Ga. 1995). · cites it 12× “OCGA § 24-3-5 recognizes an exception to the hearsay rule for the statements of a co-conspirator.”

Dulcio v. State, 740 S.E.2d 574 (Ga. 2013). · cites it 6× “Pursuant to former OCGA § 24-3-5, 3 statements made by a co-conspirator during the pendency of the criminal project, including in the concealment phase, are admissible against all other co-conspirators.”

Lewis v. State, 731 S.E.2d 51 (Ga. 2012). · cites it 6× “The State contends that the statement was admissible under OCGA § 24-3-5 4 as the statement of a co-conspirator; Lewis contends that no conspiracy between him and Heard was shown so as to make the statement admissible.”

Brooks v. State, 635 S.E.2d 723 (Ga. 2006). · cites it 6× “Because the statements were all properly admitted against all defendants as co-conspirator’s statements under OCGA § 24-3-5, the trial court did not err in admitting the statements or refusing to provide limiting instructions therewith.”

Show all 184 citing cases →

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.