A condition, precedent or subsequent, not complied with, insufficiency or failure of consideration, or any act of the opposite party, by which the obligation of the contract has ceased, may be pleaded as a defense.
(Orig. Code 1863, § 2798; Code 1868, § 2806; Code 1873, § 2857; Code 1882, § 2857; Civil Code 1895, § 3707; Civil Code 1910, § 4301; Code 1933, § 20-902.)
Cross references.- General rules of pleading and requirement of setting forth failure of consideration as an affirmative defense, § 9-11-8.
Pleading of special matters, § 9-11-9.
JUDICIAL DECISIONSANALYSIS
General Consideration
Failure to perform without legal excuse or other party's fault bars recovery under contract.
- When plaintiff fails to show legal reason to excuse plaintiff's nonperformance or that such was caused by act or fault of defendant, plaintiff cannot recover under expressed terms of contract. Clarke's Super Gas, Inc. v. Tri-State Sys., 129 Ga. App. 650, 200 S.E.2d 472 (1973).
Recovery for breach of a security agreement not foreclosed by homeowner's failure to pay amount due.
- Homeowner sufficiently alleged a claim for breach of contract against the homeowner's mortgage lender based on a promise in the security agreement that the lender would foreclose "fairly" while acting as the owner's agent; the homeowner was not required to perform the homeowner's obligation of payment because the lender's obligations as to reinstatement and foreclosure were triggered by the failure to pay. Stewart v. SunTrust Mortg., Inc., 331 Ga. App. 635, 770 S.E.2d 892 (2015).
Upon anticipatory repudiation, innocent party may consider oneself absolved from future performance and has election of several possible remedies, including right to rescind contract altogether and recover value of any performance one has already rendered. CCE Fed. Credit Union v. Chesser, 150 Ga. App. 328, 258 S.E.2d 2 (1979).
Trial court erred in setting aside consent decree.
- Trial court erred in finding that a consent judgment was void due to impossibility of performance or lack of mutuality and in denying the sellers' motion for judgment instanter on the consent judgment because the purchasers accepted the risk that the purchasers would be unable to complete the road on time per the agreement and set up an alternative method of compliance, namely, the payment of money to the sellers. Kothari v. Tessfaye, 318 Ga. App. 289, 733 S.E.2d 815 (2012).
Cited in Watkins v. Stulb & Vorhauer, 23 Ga. App. 181, 98 S.E. 94 (1919); Rogers v. Southern Fertilizer & Chem. Co., 36 Ga. App. 229, 136 S.E. 106 (1926); Kansas City Life Ins. Co. v. Williams, 59 Ga. App. 66, 200 S.E. 329 (1938); Gibbs v. H.T. Henning Co., 189 Ga. 675, 7 S.E.2d 238 (1940); Hall v. Southern Sales Co., 81 Ga. App. 392, 58 S.E.2d 925 (1950); Drennon Food Prods. Co. v. Drennon, 104 Ga. App. 19, 120 S.E.2d 902 (1961); Holiday Homes, Inc. v. Bragg, 132 Ga. App. 594, 208 S.E.2d 608 (1974); American Fletcher Mtg. Co. v. First Am. Inv. Corp., 463 F. Supp. 186 (N.D. Ga. 1978); Reisman v. Martori, Meyer, Hendricks, & Victor, 155 Ga. App. 551, 271 S.E.2d 685 (1980); Henco Adv., Inc. v. Geographics, Inc., 155 Ga. App. 571, 271 S.E.2d 704 (1980); Crowe, Carter & Assocs. v. Hyde, 163 Ga. App. 816, 295 S.E.2d 353 (1982); Hill Aircraft & Leasing Corp. v. Planes, Inc., 169 Ga. App. 161, 312 S.E.2d 119 (1983); Jim Walter Homes, Inc. v. Strickland, 185 Ga. App. 306, 363 S.E.2d 834 (1987).
Conditions Precedent
No recovery on contract dependent upon performance of conditions precedent which have not been complied with. Thurmond v. Sovereign Camp, W.O.W., 171 Ga. 446, 155 S.E. 760 (1930).
When recovery depends upon performance of condition precedent, plaintiff must allege and prove performance or excuse.
- When plaintiff's right to recover on contract depends upon performance of condition precedent, plaintiff must allege and prove performance of such condition precedent or allege sufficient legal excuse for the contract's nonperformance; however, it is sufficient compliance with this provision for plaintiff to allege facts which of themselves raise presumption that conditions precedent in contract have been complied with. Kansas City Life Ins. Co. v. Williams, 59 Ga. App. 66, 200 S.E. 329 (1938), later appeal, 62 Ga. App. 707, 9 S.E.2d 680 (1940).
When right to recover under contract contains condition precedent, petition seeking recovery under contract must allege compliance with condition precedent or allege legal excuse for noncompliance with the contract. Nutting v. Wilson, 75 Ga. App. 148, 42 S.E.2d 575 (1947).
Failure of Consideration
Consideration open to inquiry between original parties to show its absence, illegality, or failure.
- Between original parties, consideration expressed in contract is ordinarily open to inquiry for purpose of showing that contract was in fact executed without consideration and is nudum pactum, or that consideration was originally illegal and contract void, or that consideration has subsequently failed in whole or in part. Herrington v. Herrington, 70 Ga. App. 768, 29 S.E.2d 516 (1944).
Total or partial failure of consideration is permissible defense to action founded upon any contract. Robbins v. Hays, 107 Ga. App. 12, 128 S.E.2d 546 (1962).
Failure of consideration, in whole or part, may be pled in defense to executory promise.
- If consideration, apparently good or valuable, fails either wholly or in part before promise is executed, such failure may be pled in defense to promise. Finney v. Cadwallader, 55 Ga. 75 (1875).
Failure of consideration should be set up in proper plea, not in general demurrer (now motion to dismiss). Planters Rural Tel. Coop. v. Chance, 105 Ga. App. 270, 124 S.E.2d 300 (1962).
Plea of failure to consideration does not add to or vary contract.
- Plea of breach of warranty and of failure of consideration does not add to or vary contract between parties, nor is it necessary to allege therein fraud, accident, or mistake. Aultman & Co. v. Mason, 83 Ga. 212, 9 S.E. 536 (1889).
RESEARCH REFERENCES
C.J.S.
- 17A C.J.S., Contracts, §§ 548, 552.
ALR.
- Presence of noxious weeds as ground for rescission of contract for purchase of land, 2 A.L.R. 1511.
Rights and remedies in respect of the property upon the death, in the lifetime of grantor, of the grantee in a deed in consideration of future support, 34 A.L.R. 136.
Rights and remedies as between parties to a conditional sale after the seller has repossessed himself of the property, 37 A.L.R. 91; 83 A.L.R. 959; 99 A.L.R. 1288; 49 A.L.R.2d 15.
Failure to make promised improvements on land as ground for rescission of contract for purchase of part thereof, 67 A.L.R. 809.
Failure to procure occupational or business license or permit as affecting validity or enforceability of contract, 118 A.L.R. 646.
Architect's or engineer's compensation as affected by inability to carry out plan or specifications at amount satisfactory to employer, 127 A.L.R. 410.
Performance by vendor of covenant to make improvement as condition of his right to foreclose or forfeit contract, 128 A.L.R. 656.
Agreement postponing payment of preexisting debt until happening of some specific contingency wholly or partially within debtor-promisor's control as requiring payment within a reasonable time, even though the contingent event has not occurred, 148 A.L.R. 1075.
Rights of parties to contract the performance of which is interfered with or prevented by war conditions or acts of government in prosecution of war, 158 A.L.R. 1446.
Rights of parties to a timber contract upon failure of purchaser to remove the timber within the time fixed or within a reasonable time, 164 A.L.R. 423.
Broker's liability to prospective purchaser for refund of deposit or earnest money where contract fails because of defects in vendor's title, 38 A.L.R.2d 1382.
Construction and effect of provision in private building and construction contract that work must be done to satisfaction of owner, 44 A.L.R.2d 1114.
Rights and duties of parties to conditional sales contract as to resale of repossessed property, 49 A.L.R.2d 15.
Effect of provision in real-estate option or land sale contract making the contract subject to zoning or rezoning of the property, 76 A.L.R.2d 1195.
Right of lessor to cancel oil or gas lease for breach of implied obligation to explore and develop further after initial discovery of oil or gas, in absence of showing reasonable expectation of profit to lessee from further drilling, 79 A.L.R.2d 792.
Construction and effect of clause making lease contingent or conditional upon the lessee obtaining a use permit from public building or zoning authorities, 90 A.L.R.2d 1031.
Failure of artisan or construction contractor to comply with statute or regulation requiring a work permit or submission of plans as affecting his right to recover compensation from contractee, 26 A.L.R.3d 1395.
Breach or repudiation of contract as affecting right to enforce arbitration clause therein, 32 A.L.R.3d 377.
Lessee's breach of or default under lease agreement as affecting his right in respect of option to purchase under the lease, 53 A.L.R.3d 435.
Failure of vendor to comply with statute or ordinance requiring approval or recording of plat prior to conveyance of property as rendering sale void or voidable, 77 A.L.R.3d 1058.
Sufficiency of real-estate buyer's efforts to secure financing upon which sale is contingent, 78 A.L.R.3d 880.
Failure of creditor, or creditor's assignee, to secure credit insurance as affecting rights or liabilities of debtor, upon debtor's loss, 88 A.L.R.3d 794.
Inability to obtain license, permit, or charter required for tenant's business as defense to enforcement of lease, 89 A.L.R.3d 329.
Limitation to quantum meruit recovery, where attorney employed under contingent fee contract is discharged without cause, 92 A.L.R.3d 690.