Waldrip v. Voyles , 201 Ga. App. 592 ( 1991 )

Andrews, Judge,

dissenting.

I respectfully dissent from the majority opinion because I do not believe that OCGA § 13-4-42 creates a duty which exists independently of contract and therefore, the trial court erred in holding that a violation of that statute constitutes a tort. OCGA § 13-4-42 creates an implied contractual condition regarding application of payments which applies only if the parties have not otherwise contracted. “Where the parties have made an agreement respecting the application of payments, it must be observed.” Citizens Bank, Vienna v. Bowen, 169 Ga. App. 896, 899 (3) (315 SE2d 437) (1984). In other words, the purpose of OCGA § 13-4-42 is to provide implied terms to contracts which are silent regarding payment application.

A violation of the implied contractual condition provided for by OCGA § 13-4-42 by definition cannot be a tort. OCGA § 51-1-1 provides: “A tort is the unlawful violation of a private legal right other than a mere breach of contract, express or implied.” It is fundamental that for a breach of contract to constitute a tort there must be a duty breached which is independent of the contract. Sheppard v. Yara Engineering Corp., 248 Ga. 147, 148 (281 SE2d 586) (1981). See also AAA Parking v. Bigger, 113 Ga. App. 578 (149 SE2d 255) (1966). The fact that this statute, instead of the contract itself, supplied the particular contract terms which were breached here does not alter the fact that the duties between the parties arose solely from contract. Therefore, the majority’s premise that because OCGA § 13-4-42 supplies the additional terms, the duties imposed thereunder are no longer contractual in nature, is misplaced.

Decided October 23, 1991. Troy R. Millikan, for appellant. Cliff L. Jolliff, Mark Fockele, for appellee.

Because of my conclusion with respect to Division 1 of the opinion, I dissent also from Divisions 2 (a), 3 and 4.

I am authorized to state that Presiding Judge Birdsong and Judge Beasley join in this dissent.