International Software Solutions, Inc. v. Atlanta Pressure Treated Lumber Co., A89A1879

Decision Date08 February 1990
Docket NumberNo. A89A1879,A89A1879
Citation194 Ga.App. 441,390 S.E.2d 659
PartiesINTERNATIONAL SOFTWARE SOLUTIONS, INC. v. ATLANTA PRESSURE TREATED LUMBER COMPANY et al.
CourtGeorgia Court of Appeals

Robert E. Hall, Atlanta, for appellant.

Charles L. Jurjevich, for appellees.

BIRDSONG, Judge.

Appellant appeals the final judgment in favor of appellees/plaintiffs in the amount of $5,500 of the State Court of Fulton County.

Appellees filed suit in magistrate court averring in its statement of claim that it "seeks rescission of the contract, to return the [computer] system to the [d]efendant, and a refund of its money." (Emphasis supplied.) Appellant demanded trial by jury and the case was transferred to the state court. The trial court found inter alia that the parties had agreed appellant/defendant would sell and install a computer system for appellees; that the installed system never performed the function desired by appellees and agreed upon by the parties; that appellees were a small business with unique, but reasonable, computer system requirements; that the system sold and installed by appellants did not meet appellees' needs; and, that appellees paid appellant $5,500 for the computer system. The trial court concluded that appellant had breached the agreement by failing to deliver a computer that could meet appellees' needs, and that appellees had the statutory requirements of OCGA § 13-4-62 for rescission for nonperformance.

Appellant contends the trial court erred in concluding as a matter of law that appellees were entitled to rescission because "it is uncontroverted that the [a]ppellees at no time tendered, or offered to tender, to [a]ppellant the ... computer system," and that the "computer system was retained by [a]ppellees even as of the date of trial."

Generally in this state, a party desiring to rescind a contract must, as a condition precedent to such rescission, restore or tender the benefits received under the contract. See generally Acme Brewing Co. v. Wm. Rahr Sons Co., 10 Ga.App. 564, 73 S.E. 955 (restitution before absolution), citing Harden v. Lang, 110 Ga. 392(1), 36 S.E. 100; 26 EGL, Restitution, § 13; compare Home Ins. Co. v. Swann, 34 Ga.App. 19, 26, 128 S.E. 70 and Collins v. Frazier, 23 Ga.App. 236(1), 98 S.E. 188.

"The rule that he who desires to rescind a contract must restore whatever he has received under it is one of justice and equity ... and must be reasonably construed and applied. The object of the rule is theoretically to place the parties in statu quo; but the rule is equitable, not technical, and does not require more than that such restoration be made as is reasonably possible and such as the merits of the case demand." (Emphasis added.) 17 AmJur2d 996, Contracts, § 512. It is apparent from a comparison of the plain language of OCGA §§ 13-4-60 with 13-4-62 that the latter statute, pertaining to rescission for nonperformance, embraces this basic concept. OCGA § 13-4-62 contains no express statutory requirement for restoration as a condition precedent to rescission for nonperformance, rather it authorizes such rescission "but only when both parties can be restored to the condition in which they were before the contract was made."

In Smith v. McWhorter, 173 Ga. 255, 273, 160 S.E. 250, the Supreme Court held that " '[o]ne rescinding [a] contract is not required to return consideration, when to do so would be unreasonable or impossible.' " (Emphasis supplied.) If the nonperforming party to the contract absents himself so that a restoration of the contract benefit gained cannot be timely made by the rescinding party, a suit for rescission may be maintained without a tender to the creditor in person, if the plaintiff offers to pay the money into court for him. Smith, supra at 274, 160 S.E. 250, citing Berry v. Williams, 141 Ga. 642, 81 S.E. 881. The evidence supports an inference that, after it became apparent that appellees were not satisfied with the equipment, appellant's agent acted in a manner making it unreasonable, within the meaning of Smith, supra, for appellees to return the computer system to appellant. Moreover, appellees' pleadings reflect its desire to return ap...

To continue reading

Request your trial
13 cases
  • Thor Gallery at S. DeKalb, LLC v. Monger
    • United States
    • Georgia Court of Appeals
    • July 15, 2016
    ...645, 722 S.E.2d 370 (2012) ; Crowell v. Williams , 273 Ga.App. 676, 615 S.E.2d 797 (2005) ; Intl. Sofware Solutions v. Atlanta Pressure Treated Lumber Co. , 194 Ga.App. 441, 390 S.E.2d 659 (1990) ; Cut c liffe v. Chesnut , 122 Ga.App. 195, 176 S.E.2d 607 (1970). Instead, they are simply cas......
  • 2010-1 SFG Venture LLC v. Lee Bank & Trust Co.
    • United States
    • Georgia Court of Appeals
    • July 9, 2015
    ...Venture any benefits that it may have received under the agreement was reasonable. See Intl. Software Solutions, Inc. v. Atlanta Pressure Treated Lumber Co., 194 Ga.App. 441, 442, 390 S.E.2d 659 (1990) (“Restoration does not require that the opposite party be placed in exact status quo, but......
  • Radio Perry, Inc. v. Cox Commc'ns, Inc.
    • United States
    • Georgia Court of Appeals
    • July 16, 2013
    ...restoration be made as is reasonably possible and such as the merits of the case demand.Intl. Software Solutions v. Atlanta Pressure Treated Lumber Co., 194 Ga.App. 441, 442, 390 S.E.2d 659 (1990) (citation, punctuation and emphasis omitted). In accord with this principle, we have held that......
  • BJM & Associates, Inc. v. Norrell Services, Inc.
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • May 3, 1994
    ...must return whatever he has received under the contract. However, as seen in International Software Solutions, Inc. v. Atlanta Pressure Treated Lumber Company, 194 Ga.App. 441, 390 S.E.2d 659 (1990), this rule is not absolute and must be applied reasonably. The International Software court ......
  • Request a trial to view additional results
6 books & journal articles
  • 1 Small Claim Cases
    • United States
    • State Bar of Georgia Georgia Benchbook 2023 edition
    • Invalid date
    ...law, tendering any proceeds. A limited jurisdiction court may condition the award of money damages upon the return of personal property [194 Ga.App. 441, 390 SE2d 659 (1990)]. Res judicata - Where plaintiff chooses magistrate court, s/he is barred from asserting claims beyond court's jurisd......
  • 1 Small Claim Cases
    • United States
    • State Bar of Georgia Georgia Benchbook 2022 edition
    • Invalid date
    ...law, tendering any proceeds. A limited jurisdiction court may condition the award of money damages upon the return of personal property [194 Ga.App. 441, 390 SE2d 659 (1990)]. Res judicata - Where plaintiff chooses magistrate court, s/he is barred from asserting claims beyond court's jurisd......
  • 1 Small Claim Cases
    • United States
    • State Bar of Georgia Georgia Benchbook 2016 edition
    • Invalid date
    ...law, tendering any proceeds. A limited jurisdiction court may condition the award of money damages upon the return of personal property [194 Ga.App. 441, 390 SE2d 659 (1990)]. Res judicata - Where plaintiff chooses magistrate court, s/he is barred from asserting claims beyond court's jurisd......
  • 1 Small Claim Cases
    • United States
    • State Bar of Georgia Georgia Benchbook 2017 edition
    • Invalid date
    ...law, tendering any proceeds. A limited jurisdiction court may condition the award of money damages upon the return of personal property [194 Ga.App. 441, 390 SE2d 659 (1990)]. Res judicata - Where plaintiff chooses magistrate court, s/he is barred from asserting claims beyond court's jurisd......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT