Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.
(Civil Code 1895, § 3799; Civil Code 1910, § 4395; Code 1933, § 20-1407.)
Law reviews.- For article discussing recovery of anticipatory damages in breach of contract actions, see 11 Ga. B.J. 18 (1948). For annual survey of law of contracts, see 38 Mercer L. Rev. 107 (1986). For article, "Recent Developments in Construction Law," see 5 Ga. St. B.J. 24 (1999).
JUDICIAL DECISIONSANALYSIS
Section applies only to suits on contract and not to suits on tort. Postal Telegraph-Cable Co. v. Kaler, 65 Ga. App. 641, 16 S.E.2d 77 (1941).
Tortious acts not necessary for recovery.
- Even though the statutory definitions of general and special damages, 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).
Rule against recovery of vague damages applies more to causation than uncertainty as to measure.
- Rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, when proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted. Kuhlke Constr. Co. v. Mobley, Inc., 159 Ga. App. 777, 285 S.E.2d 236 (1981).
Punitive damages are not recoverable for mere breach of contract. Bennett v. Associated Food Stores, Inc., 118 Ga. App. 711, 165 S.E.2d 581 (1968).
Injured party to be placed in position injured 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).
Measure of damages in case of breach of contract is amount which will compensate injured person for loss which fulfillment of contract would have prevented or breach of contract entailed; the person injured, is, so far as it is possible to do so by monetary award, to be placed in position the injured person would have been in had contract been performed. Darlington Corp. v. Evans, 88 Ga. App. 84, 76 S.E.2d 72 (1953); Bennett v. Associated Food Stores, Inc., 118 Ga. App. 711, 165 S.E.2d 581 (1968).
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).
Damages, to be recoverable, must result from act on part of other party. Darlington Corp. v. Evans, 88 Ga. App. 84, 76 S.E.2d 72 (1953).
Distinction between proximate cause concept in torts and breach of contract.- Proximate cause concept in law of torts and in breach of contract seems to differ only in that probable and natural consequences of breach must have been foreseeable at time contract was entered into. National Hills Shopping Ctr., Inc. v. Insurance Co. of N. Am., 308 F. Supp. 248 (S.D. Ga. 1970).
No apportionment of degree of responsibility in warranty cases as in negligence cases.- As between a negligent plaintiff and a negligent defendant their respective fault may be compared and reflected in amount of jury award, but Georgia law makes no provision for apportioning degree of responsibility in warranty cases. National Hills Shopping Ctr., Inc. v. Insurance Co. of N. Am., 308 F. Supp. 248 (S.D. Ga. 1970).
Recovery restricted to nominal damages where evidence insufficient for jury to ascertain actual damages.
- If plaintiff fails to furnish sufficient data to enable jury, with reasonable degree of certainty and exactness, to estimate actual damages sustained by purchaser, then the plaintiff's recovery will be restricted to nominal damages. Crawford & Assocs. v. Groves-Keen, Inc., 127 Ga. App. 646, 194 S.E.2d 499 (1972).
Nominal damages are available despite no showing of actual damages.
- Trial court erred in granting the plaintiff summary judgment on the defendants' counterclaim for breach of a co-tenancy agreement because the record contained evidence from which a jury could award the defendants' damages, either actual or nominal, from the plaintiff's alleged breach as the injured party has a right to damages, but, when there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action. 6428 Church St. v. SM Corrigan, LLC, 352 Ga. App. 437, 834 S.E.2d 603 (2019), cert. denied, No. S20C0468, 2020 Ga. LEXIS 386 (Ga. 2020); cert. denied, No. S20C0473, 2020 Ga. LEXIS 399 (Ga. 2020).
Burden of proof.
- Burden is on the plaintiff to show both the breach and the damage. This must be done by evidence which will furnish the jury with data sufficient to enable the jury to estimate the amount of damages with reasonable certainty. Hospital Auth. v. Bryant, 157 Ga. App. 330, 277 S.E.2d 322 (1981).
Exact computation of damages not requirement.
- When a contract contemplated both fixed and variable costs, it was not necessary to prove to an "exact computation" the profit element of the contractual damages. Kemire, Inc. v. Williams Investigative & Sec. Servs., Inc., 215 Ga. App. 194, 450 S.E.2d 427 (1994).
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).
Damages for breach of title insurance policy.
- General method for computing damages for breach of a title insurance policy is the difference between the value of the property when purchased with the encumbrance or encroachment thereon, and the value of the property as it would have been if there had been no such encumbrance or encroachment. Doss & Assocs. v. First Am. Title Ins. Co., 325 Ga. App. 448, 754 S.E.2d 85 (2013).
No damage award when unable to show damages resulted from breach.
- Trial court erred in denying a customer's motion for summary judgment in a car rental company's breach of contract action because the company failed to adduce any evidence that the damages a rental truck sustained resulted from the customer's alleged breach of the rental agreement; the company admitted that customers were not responsible for damage to rented vehicles that occurred after the vehicles were returned to the company's possession and that it would have been consistent with the company's policies and procedures for a customer to return a rented vehicle to the company's premises and leave the keys in the key drop box, and the company offered no evidence to contradict the customer's evidence that the customer's friend returned the truck undamaged to the rental lot, locked the truck's windows and doors, and placed the keys in the drop box. Norton v. Budget Rent a Car Sys., 307 Ga. App. 501, 705 S.E.2d 305 (2010).
Bank that was found to have breached a loan participation agreement was properly found liable for zero damages to the owner of a participant's share in the loan; the district court did not err in analogizing to legal malpractice cases to conceptualize expectation interest, and the owner could not show that the payout the owner received was damagingly inadequate absent serious evidence of the owner's expectation interest or the benefit of the owner's bargain. LNV Corp. v. Branch Banking & Trust Co., F.3d (11th Cir. Jan. 11, 2018)(Unpublished).
Sufficient evidence to defeat summary judgment.- Plaintiff, a surety, asserted (1) that the damages plaintiff sought to recover were a result of the alleged negligent performance by defendant, a construction program manager (CPM), of its contractual duties, including the duty to certify a subsequently defaulting construction company's payment applications; and (2) that plaintiff's damages included the cost of remediating nonconforming work performed by the construction company and certified by the CPM; the surety also presented evidence with regard to which pay applications and which specific items on the pay applications they contended should not have been certified by the CPM and the cost to remediate the nonconforming work. Accordingly, the surety presented sufficient evidence to create an issue of fact regarding damages for the surety's breach of contract claims and preclude summary judgment. Carolina Cas. Ins. Co. v. R.L. Brown & Assocs., F. Supp. 2d (N.D. Ga. Sept. 29, 2006).
Trial court did not err in denying a manager's motion for summary judgment as to the joint venturers' counterclaims for breach of contract and breach of the duty of good faith and fair dealing regarding its management of certain real estate because genuine issues of material fact existed as to whether the manager failed to meet the manager's contractual obligations to manage and control the business including acquiring, holding, maintaining, leasing, exchanging, and disposing of the properties owned. Maree v. ROMAR Joint Venture, 329 Ga. App. 282, 763 S.E.2d 899 (2014), overruled on other grounds by SRM Group, Inc. v. Travelers Prop. Cas. Co. of Am., 308 Ga. 404, 841 S.E.2d 729 (2020).
Failure to show damages.
- Summary judgment was improperly denied to the lender on the borrowers' breach of contract claim because the borrowers could not show damages based on the failure to give the borrowers notice of the acceleration of the notes and impending foreclosure. Oconee Fed. S&L Ass'n v. Brown, 351 Ga. App. 561, 831 S.E.2d 222 (2019), cert. dismissed, No. S20C0074, 2020 Ga. LEXIS 201 (Ga. 2020).
Cited in McKenzie v. Mitchell, 123 Ga. 72, 51 S.E. 34 (1905); Robert R. Sizer & Co. v. G. T. Melton & Sons, 129 Ga. 143, 58 S.E. 1055 (1907); Mitchell v. Henry Vogt Mach. Co., 3 Ga. App. 542, 60 S.E. 295 (1908); Christophulos Cafe Co. v. Phillips, 4 Ga. App. 819, 62 S.E. 562 (1908); Tygart v. Albritton, 5 Ga. App. 412, 63 S.E. 521 (1909); Oxford Knitting Mills v. Wooldridge, 6 Ga. App. 301, 64 S.E. 1008 (1909); Hardwood Lumber Co. v. Adam & Steinbrugge, 134 Ga. 821, 68 S.E. 725, 32 L.R.A. (n.s.) 192 (1910); Mimms v. Betts Co., 9 Ga. App. 718, 72 S.E. 271 (1911); Stienhauer & Wight, Inc. v. Thompson, 16 Ga. App. 470, 85 S.E. 677 (1915); Consolidated Phosphate Co. v. B.F. Sturtevant Co., 20 Ga. App. 474, 93 S.E. 155 (1917); Williams Mfg. Co. v. Scholfield's Sons Co., 21 Ga. App. 23, 93 S.E. 527 (1917); Prince v. Evans, 23 Ga. App. 660, 99 S.E. 132 (1919); Loewenthal v. Georgia, C. & P.R.R., 265 F. 961 (S.D. Ga. 1920); Garcia S. en C. v. Taggart Coal Co., 27 Ga. App. 204, 108 S.E. 72 (1921); Firestone Tire & Rubber Co. v. Shore, 31 Ga. App. 644, 121 S.E. 709 (1924); Murphey v. Northeastern Constr. Co., 31 Ga. App. 715, 121 S.E. 848 (1924); Colt Co. v. Hiland, 35 Ga. App. 550, 134 S.E. 142 (1926); Neal v. Medlin, 36 Ga. App. 796, 138 S.E. 254 (1927); Reynolds v. Speer, 38 Ga. App. 570, 144 S.E. 358 (1928); Buffington v. Atlanta Title & Trust Co., 43 Ga. App. 444, 159 S.E. 297 (1931); Kilpatrick v. Southern Crate & Veneer Co., 46 Ga. App. 225, 167 S.E. 320 (1932); Toccoa Falls Light & Power Co. v. Georgia Power Co., 53 Ga. App. 522, 186 S.E. 436 (1936); Gulf Oil Corp. v. Suburban Realty Co., 183 Ga. 847, 190 S.E. 179 (1937); Georgia Power & Light Co. v. Fruit Growers Express Co., 55 Ga. App. 520, 190 S.E. 669 (1937); Akers Lumber Co. v. Johnson Lumber Co., 54 Ga. App. 317, 195 S.E.2d 307 (1938); Western Union Tel. Co. v. Tyre, 58 Ga. App. 34, 197 S.E. 503 (1938); Raines v. Rice, 65 Ga. App. 68, 15 S.E.2d 246 (1941); Liberty Mut. Ins. Co. v. Atlantic C.L.R.R., 66 Ga. App. 826, 19 S.E.2d 377 (1942); Aircraft Apts., Inc. v. Haverty Furn. Co., 71 Ga. App. 560, 31 S.E.2d 419 (1944); Hall Bros. Hatchery, Inc. v. Hendrix, 72 Ga. App. 137, 33 S.E.2d 370 (1945); Samford v. Patent Scaffolding Co., 199 Ga. 41, 33 S.E.2d 422 (1945); Weathers Bros. Transf. Co. v. Jarrell, 72 Ga. App. 317, 33 S.E.2d 805 (1945); Speed Oil Co. v. Griffin, 73 Ga. App. 242, 36 S.E.2d 205 (1945); Chadwick v. Dolinoff, 207 Ga. 702, 64 S.E.2d 76 (1951); ABC Sch. Supply, Inc. v. Brunswick-Balke-Collender Co., 97 Ga. App. 84, 102 S.E.2d 199 (1958); Bigelow-Sanford Carpet Co. v. Goodroe, 98 Ga. App. 394, 106 S.E.2d 45 (1958); Tyson v. Nimick, 99 Ga. App. 722, 109 S.E.2d 627 (1959); Smith v. A.A. Wood & Son Co., 103 Ga. App. 802, 120 S.E.2d 800 (1961); New Amsterdam Cas. Co. v. Mitchell, 325 F.2d 474 (5th Cir. 1963); State Hwy. Dep't v. Knox-Rivers Constr. Co., 117 Ga. App. 453, 160 S.E.2d 641 (1968); Brown v. Royal Wood, Inc., 119 Ga. App. 564, 168 S.E.2d 211 (1969); Eastern Fed. Corp. v. Avco-Embassy Pictures, Inc., 326 F. Supp. 1280 (N.D. Ga. 1970); Buford-Clairmont, Inc. v. Jacobs Pharmacy Co., 131 Ga. App. 643, 206 S.E.2d 674 (1974); University Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518 (5th Cir. 1974); Lurlee, Inc. v. Pernoshal-39 Co., 135 Ga. App. 724, 218 S.E.2d 701 (1975); Lindgren v. Dowis, 236 Ga. 278, 223 S.E.2d 682 (1976); Video Entertainment, Inc. v. Cartridge Rental Network, 138 Ga. App. 540, 226 S.E.2d 794 (1976); Lawyers Title Ins. Corp. v. Noland Co., 140 Ga. App. 114, 230 S.E.2d 102 (1976); Cagle v. Southern Bell Tel. & Tel. Co., 143 Ga. App. 603, 239 S.E.2d 182 (1977); Prudential Timber & Farm Co. v. Collins, 144 Ga. App. 849, 243 S.E.2d 80 (1978); Holder v. J.F. Kearley, Inc., 153 Ga. App. 843, 267 S.E.2d 266 (1980); Graham Bros. Constr. Co. v. C.W. Matthews Contracting Co., 159 Ga. App. 546, 284 S.E.2d 282 (1981); Tuten v. Beckham, 162 Ga. App. 101, 290 S.E.2d 205 (1982); Glennville Hatchery, Inc. v. Thompson, 164 Ga. App. 819, 298 S.E.2d 512 (1982); All-Georgia Dev., Inc. v. Kadis, 178 Ga. App. 37, 341 S.E.2d 885 (1986); Southern Disct. Co. v. Kirkland, 181 Ga. App. 263, 351 S.E.2d 685 (1986); Brooks v. Forest Farms, Inc., 182 Ga. App. 901, 357 S.E.2d 604 (1987); Puett v. McCannon, 183 Ga. App. 152, 358 S.E.2d 300 (1987); Hinesville Bank v. Pony Express Courier Corp., 868 F.2d 1532 (11th Cir. 1989); Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 385 S.E.2d 725 (1989); Paul Davis Sys. v. Peth, 201 Ga. App. 734, 412 S.E.2d 279 (1991); Gray v. Higgins, 205 Ga. App. 52, 421 S.E.2d 341 (1992); Traina Enters., Inc. v. Racetrac Petro., Inc., 241 Ga. App. 18, 525 S.E.2d 712 (1999); Camp v. Eichelkraut, 246 Ga. App. 275, 539 S.E.2d 588 (2000); Freightliner Chattanooga, LLC v. Whitmire, 262 Ga. App. 157, 584 S.E.2d 724 (2003); Operations Mgmt. Int'l v. City of Forsyth, 288 Ga. App. 469, 654 S.E.2d 438 (2007); Nat'l Ass'n of Bds. of Pharm. v. Bd. of Regents of the Univ. Sys. of Ga., F. Supp. 2d (M.D. Ga. Apr. 18, 2008); Cheatham Fletcher Scott Architects, P.C. v. Hull 2000, LLLP, 352 Ga. App. 691, 835 S.E.2d 644 (2019).
Nature of Damages Recoverable
Nature of loss or injury recoverable as damages for breach of contract.
- Damages growing out of breach of contract, in order to form basis of recovery, must be such as could be traced solely to breach, be capable of exact computation, must have arisen according to usual course of things, and be such as parties contemplated as probable result of such breach. Crawford & Assocs. v. Groves-Keen, Inc., 127 Ga. App. 646, 194 S.E.2d 499 (1972); Simmons v. Boros, 176 Ga. App. 346, 335 S.E.2d 662 (1985), aff'd, 255 Ga. 524, 341 S.E.2d 2 (1986); Leader Nat'l Ins. Co. v. Smith, 177 Ga. App. 267, 339 S.E.2d 321 (1985).
Damages arising naturally from a breach of contract.
- Even though a side contract between a medical utilization review provider and an employee benefit plan sponsor provided that the review provider had no responsibility for payment of medical claims, a plan participant could assert a claim for such damages as arisen naturally from any alleged breach of the contract by the review provider; and, if proven and established, such damages could potentially be in an amount equivalent to denied medical benefits. Monroe v. Bd. of Regents of the Univ. Sys., 268 Ga. App. 659, 602 S.E.2d 219 (2004).
When anticipated profits are recoverable.
- While anticipated profits of unestablished future business are generally too speculative for recovery, when business has been long established, has uniformly made profits, and there are definite, certain, and reasonable data for the profit's ascertainment, and such profits reasonably must have been in contemplation of parties at time of contract, those profits may be recovered at least for a limited reasonable future time, even though those profits cannot be computed with exact mathematical certainty. B.H. Levy Bro. & Co. v. Allen, 53 Ga. App. 246, 185 S.E. 369 (1936).
Lost profits recoverable, although to some extent contingent, when legally and naturally resulting from breach.
- Loss of profits which would have been earned directly under contract except for alleged breach were recoverable when the profits were within contemplation of parties at time of entering into contract and if the profits were the legal and natural result of breach, such damages not necessarily being too remote or speculative merely because the profits were to some extent contingent. Hoffman v. Louis L. Battey Post No. 4 of Am. Legion, 74 Ga. App. 403, 39 S.E.2d 889 (1946).
Lost profit 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 asignee's lost profits, based on allegations that the assignee could not operate assignee's own convenience store due to the lessee's failure to timely vacate the premises, when 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).
Lost profits not shown.
- A contractor was not entitled to recover lost profits pursuant to O.C.G.A. § 13-6-8 in its claim for breach of contract against a defaulting supplier, because the contractor failed to demonstrate a history of profitability and failed to provide definite, certain, and reasonable data to ascertain the amount of lost profits on the job at issue. Triad Drywall, LLC v. Bldg. Materials Wholesale, Inc., 300 Ga. App. 745, 686 S.E.2d 364 (2009).
Although a franchisor was entitled to recover lost profits when a franchisee breached the franchise agreement, the franchisor failed to offer sufficient evidence of the franchisor's expenses and expected savings associated with the franchise so as to show what the franchisor's lost profits would have been with reasonable certainty; the franchisor's flat advertising fees, however, were recoverable. Legacy Acad., Inc. v. JLK, Inc., 330 Ga. App. 397, 765 S.E.2d 472 (2014).
Lost profit damages supported by evidence.
- In an action by the seller of a gas station against the buyer, alleging failure to make payments on a note, the trial court did not err in finding that the seller breached the parties' agreement by failing to install three gas pumps, and that the buyer was authorized by the contract to install the pumps and to deduct the costs from the amount of the note. An award of lost profits due to the delayed installation and an award of attorney fees was authorized. Spirits, Inc. v. Patel, 350 Ga. App. 153, 828 S.E.2d 381 (2019).
Punitive damages.
- Employee benefit plan participant was not entitled to recover extra-contractual and punitive damages against the plan's claims administrator and an independent medical utilization review provider after the trial court properly dismissed the participant's breach of fiduciary duty claims as only the participant's breach of contract claims then remained and the participant could only recover compensatory damages on those claims. Monroe v. Bd. of Regents of the Univ. Sys., 268 Ga. App. 659, 602 S.E.2d 219 (2004).
Punitive damages not recoverable.
- Trial court erred in denying a doctor's motion for judgment notwithstanding the verdict on the issue of punitive damages awarded to a hospital on the hospital's breach of contract claim as punitive damages are not available for breach of contract claims. Whitaker v. Houston County Hosp. Auth., 272 Ga. App. 870, 613 S.E.2d 664 (2005).
Application anticipatory breach of contract see Redman Dev. Corp. v. Piedmont Heating & Air Conditioning, Inc., 128 Ga. App. 447, 197 S.E.2d 167 (1973).
Net profit in permanent improvements received by landlord was proper award for constructive eviction. Hathaway v. Gorfine, 134 Ga. App. 748, 216 S.E.2d 338 (1975).
Profits of contract of resale, known to vendor when making original contract, may be recovered when vendor fails to perform agreement. Ladd Lime & Stone Co. v. MacDougald Constr. Co., 29 Ga. App. 116, 114 S.E. 75 (1922); Carolina Portland Cement Co. v. Roper-Strauss-Ferst Co., 33 Ga. App. 511, 126 S.E. 860 (1925).
Refusal of loan applications, contrary to contract terms, results in damages that are not remote. Haas & Haas v. Marks, 158 Ga. 267, 123 S.E. 109 (1924).
Breach of real estate sales contract.
- In an action by a seller against a buyer for breach of a real estate sales contract, there can be no recovery for continued insurance coverage, utility bills, maintenance costs, ad valorem taxes, and loss of use of proceeds of sale, in the absence of a clause in the parties' contract expressly authorizing such recovery. Quigley v. Jones, 255 Ga. 33, 334 S.E.2d 664 (1985).
Jury's damage award was not error since: (1) it was based on evidence in the record as to the value lost to the sellers due to their detrimental reliance on the purchasers' valid and enforceable promise to purchase the property; and (2) the damages were equitable and necessary to prevent injustice. Rental Equip. Group, LLC v. Maci, LLC, 263 Ga. App. 155, 587 S.E.2d 364 (2003).
Evidence of breach of contract damages improperly excluded as speculative.
- Georgia Department of Transportation (DOT) was permitted to present evidence of the department's breach of contract damages under O.C.G.A. § 13-6-2 because an asphalt company's argument that the damages calculations were too speculative was asserting an insufficiency in the evidence that was not appropriately resolved on the company's motion in limine. State, DOT v. Douglas Asphalt Co., 297 Ga. App. 470, 677 S.E.2d 699 (2009), appeal dismissed, 297 Ga. App. 511, 677 S.E.2d 728 (2009).
Insurer may be held liable in contract for attorney fees which insured contends insured was forced to expend as a direct and natural consequence of insurer's refusal to pay the insured's claim. Travillian v. Georgia Farm Bureau Mut. Ins. Co., 182 Ga. App. 241, 355 S.E.2d 677 (1987).
Damages for failure to give concert at stipulated time are not recoverable. Alkahest Lyceum Sys. v. Curry, 6 Ga. App. 625, 65 S.E. 580 (1909).
Action for damage to a corpse.
- In an action regarding the alleged removal of eye tissue from a corpse without permission, even if the corneal tissue held pecuniary value, plaintiff could not sue for the tissue's recovery on the basis of contract. Bauer v. North Fulton Med. Ctr., Inc., 241 Ga. App. 568, 527 S.E.2d 240 (1999).
Measure of Damages Recoverable
Damage is loss suffered by failure of other party, rather than by plaintiff's performance.
- When party seeks damages for violation of contract by other party, measure of damages is not what plaintiff has suffered by performing plaintiff's part, but what plaintiff has suffered by failure of other party. Darlington Corp. v. Evans, 88 Ga. App. 84, 76 S.E.2d 72 (1953); Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640, 278 S.E.2d 182 (1981).
Measure of damages for breach of construction contract by owner is usually profits; that is, price less what it would have cost contractor to perform. Crosswell v. Arten Constr. Co., 152 Ga. App. 162, 262 S.E.2d 522 (1979).
When breach occurs after part performance, expenses so incurred are also recoverable.
- If contract is not broken until after contractor has gone to expense toward contract's performance, this net loss should also be added to figure for profit. Murray v. Americare-Medical Designs, Inc., 123 Ga. App. 557, 181 S.E.2d 871 (1971).
Offsetting benefits received against damages.- When defendant's breach of contract causes damages but also operates directly to confer some benefit upon the plaintiff, the plaintiff's claim for damages may be diminished by the amount of the benefit received. Macon-Bibb County Water & Sewerage Auth. v. Tuttle/White Constructors, Inc., 530 F. Supp. 1048 (M.D. Ga. 1981).
The offset theory can only be utilized when the benefits accruing to the plaintiff are sufficiently proximate to the contract to warrant reducing the plaintiff's damages and the failure to do so would permit the plaintiff to obtain unreasonable damages. Macon-Bibb County Water & Sewerage Auth. v. Tuttle/White Constructors, Inc., 530 F. Supp. 1048 (M.D. Ga. 1981).
Damages limited by terms of contract.- Record contained sufficient evidence to create a genuine issue of material fact as to a corporation's claim for breach of contract by an accounting firm by the firm's failure to follow generally accepted accounting standards, but damages were potentially limited by the contract's indemnity and exculpatory clauses. TSG Water Res., Inc. v. D'Alba & Donovan Certified Pub. Accountants, P.C., 366 F. Supp. 2d 1212 (S.D. Ga. 2004), aff'd in part, rev'd in part, 260 Fed. Appx. 191 (11th Cir. Ga. 2007).
Measure of damages for breach of contract to lend money.
- In ordinary engagements to borrow money, if purpose for which money is to be used is not disclosed to lender, recovery of damages is limited to difference between amount of interest at a lawful rate upon amount necessary to be procured elsewhere and amount of interest at the lawful rate contracted for. Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944).
No damages where borrower, after breach, obtains necessary amount elsewhere at same interest.
- If borrower after breach of contract to lend money is able to obtain necessary amount elsewhere at same rate of interest as contracted for originally, so as to complete the project, no special damage can be said to have been permanently sustained by reason of breach. Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944).
Measure of damages for breach of share-cropping contract by landlord.
- Value of croppers' part of crops is appropriate measure of damage in action for alleged breach of share-cropping contract where trial is had after expiration of term of contract alleged to have been breached. Wideman v. Selph, 71 Ga. App. 343, 30 S.E.2d 797 (1944).
Measure of damages for breach of contract to fill in excavations on land is difference between market value of land with excavations unfilled and value it would have had if contract had not been breached. Lastinger v. City of Adel, 69 Ga. App. 535, 26 S.E.2d 158 (1943).
Measure of damages for breach of territorial covenant in a franchise agreement was the franchisee's net expenses in attempting to comply with the contract - i.e., the expenses borne by the franchisee in the franchisee's effort to meet the franchisee's obligations under the franchise agreement less the income the franchisee derived from the contract. Re/Max of Ga., Inc. v. Real Estate Group on Peachtree, Inc., 201 Ga. App. 787, 412 S.E.2d 543 (1991), cert. denied, 201 Ga. App. 904, 412 S.E.2d 543 (1992).
Breach of sales representative agreement.
- In an action alleging that defendant company breached a sales representative agreement by removing areas from the representative's territory and by repeatedly reducing the commission rate below that provided in the agreement, evidence of actual commissions earned in the representative's territory was relevant to prove the representative's claim for damages. Douglas & Lomason Co. v. Hall, 212 Ga. App. 475, 441 S.E.2d 870 (1994).
Breach of contract by college.
- Under O.C.G.A. § 13-6-5, a student had to mitigate the damages sustained due to a college's failure to follow procedure before expelling the student; thus, the student's damages for breach of contract under O.C.G.A. § 13-6-2 were limited to the lost wages for the additional time needed to obtain a degree, the tuition costs of classes the student had to repeat, and a refund of one semester's tuition. Morehouse College, Inc. v. McGaha, 277 Ga. App. 529, 627 S.E.2d 39 (2005).
Evidence that a college had removed credit hours from a student's transcript was relevant to the student's claim for breach of contract damages, as the student could recover the cost of tuition for classes the student was forced to repeat due to the college's actions. Morehouse College, Inc. v. McGaha, 277 Ga. App. 529, 627 S.E.2d 39 (2005).
Bad faith rescission of insurance policy.- When an insurer improperly rescinded a directors and officers insurance policy with an insured, the insured was entitled to compensatory damages in an amount equal to the coverage limits of the policy because the insured established that the insured had incurred reasonable and necessary settlement costs, attorney fees, and expenses in excess of the limits as a result of lawsuits asserting claims covered under the policy. Exec. Risk Indem. v. AFC Enters., 510 F. Supp. 2d 1308 (N.D. Ga. 2007), aff'd, 279 Fed. Appx. 793 (11th Cir. 2008).
Insured obligated to pay balance of financed amount upon cancellation of insurance policy.
- Trial court properly granted an insurance premium finance corporation summary judgment on its claim against the insured for unpaid premiums because O.C.G.A. § 33-22-14(a) was not the corporation's exclusive remedy based on the finance agreement obligating the insured to pay the balance remaining once the policy was canceled. Burke v. Prime Rate Premium Fin. Corp., 325 Ga. App. 760, 754 S.E.2d 802 (2014).
If contracting party abandons completion of obligations, measure of damages is ordinarily reasonable cost of completion. Whitlock v. PKW Supply Co., 154 Ga. App. 573, 269 S.E.2d 36 (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).
Purchaser's measure of damages for breach of contract of sale of standing timber is the difference between cost of converting standing timber into merchantable lumber under terms of contract and the market value of the finished product, less percentage of such difference contracted to be paid to owner. Norman & Griffin v. Shealey, 33 Ga. App. 534, 126 S.E. 887, cert. denied, 33 Ga. App. 829 (1925).
Damages in contracts involving vehicles.
- In an action to recover damages to a vehicle, the measure is the difference between the value of the property immediately before the damage and immediately afterwards. Letteer v. Archer, 160 Ga. App. 373, 287 S.E.2d 89 (1981).
Generally, the proper measure of damages for defective workmanship would be the cost of repair of the defect. Adamson Co. v. Owens-Illinois Dev. Corp., 168 Ga. App. 654, 309 S.E.2d 913 (1983).
Interest accrued from date contract breached.- When an insurer improperly rescinded a directors and officers insurance policy with an insured, the insured was entitled to prejudgment interest at the statutory rate of seven percent, calculated from the filing date of the action and the date the contract was breached. Exec. Risk Indem. v. AFC Enters., 510 F. Supp. 2d 1308 (N.D. Ga. 2007), aff'd, 279 Fed. Appx. 793 (11th Cir. 2008).
Correct measure of damages in suit for breach of contract to repair automobile would be the cost of repair of the defect. Simmons v. Boros, 255 Ga. 524, 341 S.E.2d 2 (1986).
Proper measure of damages for breach of contract to sell land is the difference between the contract price and the fair market value at the time of the breach. Quigley v. Jones, 174 Ga. App. 787, 332 S.E.2d 7, aff'd, 255 Ga. 33, 334 S.E.2d 664 (1985).
Instruction should include specific method to calculate damages.
- In an action for breach of a construction contract, since there was evidence which would allow a proper calculation of damages, the trial court's charge to the jury should have included the specific method to calculate damages; however, the testimony at trial did not influence the jury to calculate damages pursuant to an improper standard. Pool Markets S., Inc. v. Coggins, 195 Ga. App. 50, 392 S.E.2d 552 (1990).
No error in instructions.
- There was no error in giving instructions as to general principles regarding the recovery of damages in a contract case since 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).
Payment of points when housing construction delayed.
- Evidence authorized award of damages for increased interest costs when appellant's failure to construct a house within six months as provided by the contract resulted in appellee having to pay one-half percentage point higher on loan than appellee would have paid had the house been finished within the time frame contemplated by the contract. Executive Constr., Inc. v. Geduldig, 170 Ga. App. 560, 317 S.E.2d 564 (1984).
Shopping center lease.
- Since a shopping center lease allowed the anchor tenant to use the space for any lawful purpose, and allowed the tenant to freely assign the lease, the correct measure of damages for anticipatory breach of the lease was those damages flowing directly from the contract based on the agreed minimum rent. Piggly Wiggly S., Inc. v. Eastgate Assocs., 195 Ga. App. 10, 392 S.E.2d 337 (1990).
RESEARCH REFERENCES
Am. Jur. 2d.
- 22 Am. Jur. 2d, Damages, §§ 31 et seq.
Value of Growing Crop, 20 POF2d 115.
C.J.S.- 25 C.J.S., Damages, § 30, et seq.
ALR.
- Loss of profits as damages for breach of contract in relation to advertising, 41 A.L.R. 198.
Valuation clause in carrier's contract as limit, or as ratio, of recovery in case of partial loss, 41 A.L.R. 450.
Rate of exchange to be taken into account in assessing damages for breach of contract, 50 A.L.R. 1273; 105 A.L.R. 640.
Value of contractor's own services not rendered because of breach, as deductible item in computing damages for breach of contract, 50 A.L.R. 1397.
Measure of damages for purchaser's breach of contract to buy real property, 52 A.L.R. 1511.
Injury to prestige or reputation as element of damages for employer's breach of contract for services, 56 A.L.R. 901.
Right of construction contractor to complete performance and claim contract price, notwithstanding unjustifiable repudiation of contract by other party, 66 A.L.R. 745.
Loss of or damage to crop as element of damages for breach of contract of sale or warranty of agricultural machinery or fertilizer, 69 A.L.R. 748.
Measure of recovery for breach of correspondence school agreement, 78 A.L.R. 334.
Damages for breach of telegraph company's agreement to transmit money, 80 A.L.R. 298.
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 A.L.R. 99.
Remedy and measure of recovery where insurer breaches its contract to pay indemnity periodically, 81 A.L.R. 379; 99 A.L.R. 1171.
Measure of damages for breach of contract preventing operation of nonindustrial business in contemplation, but not established or in actual operation, 99 A.L.R. 938.
Vendee's right to recover amount paid under executory contract for sale of land, 102 A.L.R. 852; 134 A.L.R. 1064.
Measure of damages for breach by lessor of contract to lease or to put lessee into possession, 104 A.L.R. 132; 88 A.L.R.2d 1024.
Right of building or construction contractor to recover damages resulting from delay caused by default of contractee, 115 A.L.R. 65.
Measure of owner's damages for delay of contractor, or breach resulting in delay, where performance of other contract or work was necessary to complete project, 125 A.L.R. 1242.
Cancelation of lease or contract pursuant to provision in that regard as affecting liability accruing before cancelation, 166 A.L.R. 391.
Validity of contractual provision by one other than carrier or employer for exemption from liability, or indemnification, for consequences of own negligence, 175 A.L.R. 8.
Burden of proving value of relief from performing contract in suit based on defendant's breach preventing or excusing full performance, 17 A.L.R.2d 968.
Right to recover, in action for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300.
Consequences of liability insurer's refusal to assume defense of action against insured upon ground that claim upon which action is based is not within coverage of policy, 49 A.L.R.2d 694; 68 A.L.R.4th 389.
Liability of one cutting and removing timber under deed or contract for failure to remove or dispose of debris, trimmings, or tops, 56 A.L.R.2d 400.
Measure and items of damages for lessee's breach of agreement to erect building, 63 A.L.R.2d 1110.
Measure and elements of damages for breach of contract to marry, 73 A.L.R.2d 553.
Measure of damages for lessor's breach of contract to lease or to put lessee in possession, 88 A.L.R.2d 1024.
Mental anguish as element of damages in action for breach of contract to furnish goods, 88 A.L.R.2d 1367.
Recovery of damages by employee wrongfully discharged before expiration of time period fixed in employment contract as embracing entire term of contract or as limited to those damages sustained up to time of trial, 91 A.L.R.2d 682.
Measure and elements of sublessee's damages recoverable from sublessor for latter's failure to exercise option to renew his lease, 94 A.L.R.2d 1345.
Right and measure of recovery for breach of obligation to drill exploratory oil or gas wells, 4 A.L.R.3d 284.
Building and construction contracts: prime contractor's liability to subcontractor for delay in performance, 16 A.L.R.3d 1252.
Damages to franchisee for failure of franchisor of national brand or service to provide the services or facilities contracted for, 41 A.L.R.3d 1436.
Civil liability of undertaker in connection with embalming or preparation of body for burial, 48 A.L.R.3d 261.
Recovery for mental anguish or emotional distress, absent independent physical injury, consequent upon breach of contract in connection with sale of real property, 61 A.L.R.3d 922.
Measure of damages for breach of contract to will property, 65 A.L.R.3d 632.
Recovery of expected profits lost by lessor's breach of lease preventing or delaying operation of new business, 92 A.L.R.3d 1286.
Recovery by writer, artist, or entertainer for loss of publicity or reputation resulting from breach of contract, 96 A.L.R.3d 437.
Measure of damages where vendor, after execution of contract of sale but before conveyance of property, removes part of property contracted for, 97 A.L.R.3d 1220.
Measure and elements of damages for breach of contract to lend money, 4 A.L.R.4th 682.
Liability insurer's postloss conduct as waiver of, or estoppel to assert, "no-action" clause, 68 A.L.R.4th 389.
Liability of contractor who abandons building project before completion for liquidated damages for delay, 15 A.L.R.5th 376.