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Energy & Process Corp. v. Jim Dally and Assocs. Inc. d/b/a Standard Resistance Welder Co.

The voluntary payment doctrine did not apply to the plaintiff's tender of a partial payment of the final cost for the contracted-for finished products while the contract was still executory, since the plaintiff alleged that the defendant later breached the contract by failing to execute its final performance.

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Energy & Process Corporation “Energy” brought this suit against Jim Dally and Associates, Inc., d/b/a Standard Resistance Welder Company “Standard”, seeking $7,222.50 in damages for breach of contract and an award of attorney fees under OCGA § 13-6-11. At trial, Standard moved for a directed verdict on the contract claim based on the voluntary payment doctrine and on the attorney fee claim based on an absence of evidence to authorize an award of fees. The trial court granted the motion and entered final judgment in Standard’s favor on both claims. Energy appeals. For reasons that follow, we reverse. Evidence introduced at trial showed that Energy, a seller of electrical components to the utility industry, asked Standard to supply it with welding electrodes that Energy was going to sell the Westinghouse Savannah River Company for use by the Department of Energy “DOE” in a nuclear power project.

On August 15, 2003, Energy sent Standard an order to purchase 18 of the welding electrodes. Under the terms of the purchase order, Standard was to manufacture the electrodes in accordance with certain DOE specifications. At the outset, Standard was to supply “starting materials” metal discs to Energy for testing and inspection. Energy was then required to return the discs to Standard to begin the manufacturing process. The terms of payment were “NET 30 days,” meaning that payment by Energy was not due until 30 days after Standard had shipped the finished products.

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