Scope of section.

- O.C.G.A. § 13-4-4 merely sets forth a plain statutory consequence of the receipt or payment of money under a departure. It does not purport to supplant the other legal circumstances that will effect a novation or modification. Turem v. Sinowski & Jones, 195 Ga. App. 829, 395 S.E.2d 60 (1990).

Applicability to workers' compensation.

- Law of mutual departure, as applied to insurance policies, applies in the context of workers' compensation insurance. Travelers Ins. Co. v. Adkins, 200 Ga. App. 278, 407 S.E.2d 775 (1991).

Applicability to loan or lease.

- Nothing in the language of O.C.G.A. § 13-4-4 limits the statute's applicability to payments made under a loan or lease agreement. Snyder v. Time Warner, Inc., 179 F. Supp. 2d 1374 (N.D. Ga. 2001).

Under certain circumstances there may be mutual disregard of executory contract between parties. Southern Feed Stores v. Sanders, 193 Ga. 884, 20 S.E.2d 413 (1942).

To effectuate new agreement, departure from original terms must be mutual.

- Although failure to require strict compliance with the terms of a contract may create quasi new agreement, to effectuate such a new agreement, the departure from the terms of the original agreement must be mutual. Crowley v. Ford Motor Credit Co., 168 Ga. App. 162, 308 S.E.2d 417 (1983).

When a county contracted with a landfill construction company to relocate parts of a landfill, and the contract provided for a certain method of compensating the company, and when the county orally agreed to make interim payments to the company using a different method, with the final payment to be adjusted according to the payment method specified in the contract, the company was not entitled to summary judgment in the company's breach of contract suit against the county for not using a method other than that stated in the contract to determine the company's compensation, because there was no evidence that the parties mutually agreed to depart from this contract provision so as to require notice, pursuant to O.C.G.A. § 13-4-4, that one party insisted on strict compliance with the original contract terms. Handex of Fla., Inc. v. Chatham County, 268 Ga. App. 285, 602 S.E.2d 660 (2004), overruled on other grounds by Georgia Department of Labor v. RTT Associates, Inc., 2016 Ga. LEXIS 392 (Ga. 2016).

Court found no error in the district court's finding that the company's mutual departure defense failed as a matter of law. Although the company may have unilaterally interpreted the bank's previous renewals and/or modifications of the notes to have been waivers of the specified dates of maturity, there was no evidence that the bank ever intended them to be so. Branch Banking & Trust Co. v. Lichty Bros. Constr., Inc., F.3d (11th Cir. Aug. 30, 2012)(Unpublished).

Waiver by course of conduct.

- Waiver results from relinquishment of known right, and where, by course of conduct, one leads another to believe that one will not insist upon strict terms of contract, one will not be heard to complain because other contracting party relies upon one's acquiescence as evidenced by course of conduct in similar situations. Southern Life Ins. Co. v. Citizens Bank, 91 Ga. App. 534, 86 S.E.2d 370 (1955).

As a general rule, a party to a contract may not waive stipulations in favor of the other party, or rights to which the other party is entitled. However, such provisions may be waived by the conduct of both parties intended to result in the mutual disregard of, or mutual departure from the contract terms. Cho v. South Atlanta Assocs., 200 Ga. App. 737, 409 S.E.2d 674, cert. denied, 200 Ga. App. 895, 409 S.E.2d 674 (1991).

A contract provision may be waived by the conduct of both parties intended to result in the mutual disregard of, or mutual departure from, the contract terms. Hughes v. Great S. Midway, Inc., 265 Ga. 94, 454 S.E.2d 130 (1995).

There was no evidence that the parties to a security deed agreed to depart from the deed's terms so as to require notice prior to foreclosure of the lender's intent to rely on the terms of the security deed; the security deed expressly provided that the lender could accept insufficient payments without waiving the lender's rights. Chadwick v. Bank of Am., N.A., F.3d (11th Cir. July 8, 2015)(Unpublished).

Through course of dealing, entirely new verbal contract may be substituted for valid written contract, and mutual acquiescence in such course of dealing may constitute sufficient consideration for new contract. Long Tobacco Harvesting Co. v. Brannen, 98 Ga. App. 142, 105 S.E.2d 390 (1958), later appeal, 99 Ga. App. 541, 109 S.E.2d 90 (1959).

Quasi new agreement.

- Georgia law labels a departure from the terms of a contract under which money has been paid or received a "quasi new agreement." National Serv. Indus., Inc. v. Vafla Corp., 694 F.2d 246 (11th Cir. 1982).

While a quasi new agreement may arise where the parties mutually depart from the terms of an executory contract, to support such a departure there must be evidence that money was paid or received under such departure. Gibson v. Gainesville Bank & Trust, 226 Ga. App. 679, 487 S.E.2d 460 (1997).

Modification requires circumstances showing mutual intention to treat stipulations as no longer binding and must be such as, in law, to make practically a new agreement. Pittsburgh Plate Glass Co. v. Jarrett, 42 F. Supp. 723 (M.D. Ga. 1942), modified, 131 F.2d 674 (5th Cir. 1942).

While distinct stipulation in contract may be waived by conduct of parties, it must appear that it was intention of parties to treat such stipulations as no longer binding. Mere fact that one party so intended would not bring about this result. It must appear that there was mutual intention. Southern Feed Stores v. Sanders, 193 Ga. 884, 20 S.E.2d 413 (1942).

Provision of contract is not changed where only one party elects to treat stipulation as no longer binding unless other party concurs in such change. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).

To create quasi new agreement, parties to original agreement must mutually consent to departure. Crawford v. First Nat'l Bank, 137 Ga. App. 294, 223 S.E.2d 488 (1976).

There must be more than simple breach by a party, there must be mutual departure. Crawford v. First Nat'l Bank, 137 Ga. App. 294, 223 S.E.2d 488 (1976).

Though quasi new agreement arises where parties mutually depart from terms of original agreement and pay or receive money under such departure there must be more than simple breach on part of one party; there must be mutual departure. Vaughn & Co. v. Saul, 143 Ga. App. 74, 237 S.E.2d 622 (1977); Fair v. General Fin. Corp., 147 Ga. App. 706, 250 S.E.2d 9 (1978).

When only one party disregards terms, other party may rely on exact contract terms.

- If only one party disregards terms of contract and other party did not concur in such changes, then nonconcurring party may rely on exact terms of contract. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).

Mutual departure from some terms does not affect other executory terms.

- Mutual departure from terms of executory contract requires notice of intention to return to original terms before those terms can be enforced. But such mutual departure affects only particular terms impliedly excused, and other executory terms remain enforceable, absent such mutual departure as to those terms also. State Mut. Ins. Co. v. Strickland, 218 Ga. 94, 126 S.E.2d 683 (1962).

A mutual departure from one contract term does not affect the enforceability of the other contractual provisions. Southwest Plaster & Drywall Co. v. R.S. Armstrong & Bros. Co., 166 Ga. App. 373, 304 S.E.2d 500 (1983).

Even if an oral agreement to vary the payment amounts and duration was a mutual departure from the original contract terms of a student loan agreement, the remaining provisions of the original contract remained in full force. United States v. Salzillo, 694 F. Supp. 1560 (N.D. Ga. 1988).

Distinction between departure and novation or abrogation.

- Departure differs from novation or abrogation of contract, in that, under novation or abrogation, there can be no return to original terms of contract. American Iron & Metal Co. v. National Cylinder Gas Co., 105 Ga. App. 458, 125 S.E.2d 106 (1962).

For section to apply, circumstances must be such as to imply mutual new agreement whereby new, distinct and definite terms are supplied in lieu of those provided in original contract. Ball v. Foundation Co., 25 Ga. App. 126, 103 S.E. 422 (1920); Jones v. Lawman, 56 Ga. App. 764, 194 S.E. 416 (1937); Pittsburgh Plate Glass Co. v. Jarrett, 42 F. Supp. 723 (M.D. Ga. 1942), modified, 131 F.2d 674 (5th Cir. 1942); Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973); Vaughn & Co. v. Saul, 143 Ga. App. 74, 237 S.E.2d 622 (1977); Fair v. General Fin. Corp., 147 Ga. App. 706, 250 S.E.2d 9 (1978).

While it is true that where parties, in course of performance of contract, depart from the contract's terms and pay or receive money under such departure, modification by way of quasi new agreement will be implied, in order for this rule to have application, it is necessary that circumstances be such as will in law imply a mutual new agreement, so that modification, when taken in connection with original contract, will provide new and distinct agreement complete in its terms. Morrison v. Roberts, 195 Ga. 45, 23 S.E.2d 164 (1942).

For a party to succeed on a claim that the parties had entered a quasi new contract pursuant to O.C.G.A. § 13-4-4, it would have to demonstrate that the parties mutually agreed to a new contract with distinct and definite terms. However, a jury should determine whether a new contract is created. Massachusetts Bay Ins. Co. v. Photographic Assistance Corp., 732 F. Supp. 1572 (N.D. Ga. 1990).

While parties may agree to depart from the terms of a contract, to support such a departure, there must be some evidence that an agreement to do so had been reached. Cloud v. Georgia Cent. Credit Union, 214 Ga. App. 594, 448 S.E.2d 913 (1994); Georgia Color Farms, Inc. v. K.K.L., Ltd. Partnership, 234 Ga. App. 849, 507 S.E.2d 817 (1998).

Jury question as to whether departure from terms of lease was mutual.

- In a landlord/tenant dispute, issues of fact remained as to whether the parties mutually departed from the lease's terms, given evidence that the landlord had agreed to pay for a sprinkler system in the premises, but only if the county would not grant a business license some other way, and the parties did not attempt to resolve the issue with the county. Wright v. IC Enters., 330 Ga. App. 303, 765 S.E.2d 484 (2014).

Whether parties' conduct creates quasi new agreement, ordinarily jury question.

- Question whether there has been such mutual temporary disregard of terms of contract as contemplated in law presents issue for determination by jury in light of testimony submitted as to statements and conduct of parties with relation to execution of contract. Mauldin v. Gainey, 15 Ga. App. 353, 83 S.E. 276 (1914).

Whether or not there has been mutual disregard of original contract provisions is question for jury or auditor. Southern Feed Stores v. Sanders, 193 Ga. 884, 20 S.E.2d 413 (1942).

Whether or not there has been such mutual disregard of terms of written contract as to create quasi new contract is ordinarily question of fact for jury. Haynie v. Murray, 74 Ga. App. 253, 39 S.E.2d 567 (1946).

Question as to whether or not there has been mutual intention, and in fact mutual departure from terms of original contract, is ordinarily one of fact for determination by jury. Prothro v. Walker, 202 Ga. 71, 42 S.E.2d 114 (1947); Powell v. Mars Oil Co., 214 Ga. 710, 107 S.E.2d 208 (1959); Phoenix Air Conditioning Co. v. Towne House Developers, Inc., 124 Ga. App. 782, 186 S.E.2d 429 (1971).

Whether there has been mutual and intended departure so as to make practically new agreement is generally question for jury to determine. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973); Travelers Ins. Co. v. Adkins, 200 Ga. App. 278, 407 S.E.2d 775 (1991).

Whether conduct of parties causes waiver of contract provisions, and creates quasi new agreement is ordinarily question of fact for jury. Crawford v. First Nat'l Bank, 137 Ga. App. 294, 223 S.E.2d 488 (1976).

Generally, alteration or modification of a contract is a jury question, that is, as to whether there has been a mutual departure from terms thereof. Norair Eng'g Corp. v. Porter Trucking Co., 163 Ga. App. 780, 295 S.E.2d 155 (1982).

Whether the conduct of the parties constitutes a mutual departure from and a waiver of a contract provision ordinarily is a question of fact for the jury. Southwest Plaster & Drywall Co. v. R.S. Armstrong & Bros. Co., 166 Ga. App. 373, 304 S.E.2d 500 (1983).

Whether there has been such a mutual and intended departure as to make practically a new agreement is generally a question for a jury to determine and such a finding, made by the jury under proper instructions and supported by any evidence is conclusive on this court. United Servs. Auto. Ass'n v. Gottschalk, 212 Ga. App. 88, 441 S.E.2d 281 (1994).

Notice of intent to rely on original agreement.

- Whether creditor's requests for payment and attorney's collection letter were sufficient notice of intention to rely on original terms of note was a disputed issue of fact which required determination by a jury. Vaughan v. Wrenn Bros., 163 Ga. App. 383, 294 S.E.2d 609 (1982).

Evidence of a departure from the terms of previous contracts has no bearing upon the outcome of the case sub judice. Choice Hotels Int'l, Inc. v. Ocmulgee Fields, Inc., 222 Ga. App. 185, 474 S.E.2d 56 (1996).

Any evidence of a departure from the terms of previous loans has no bearing upon the outcome of the controversy concerning the present loan. Minor v. Citizens & S. Nat'l Bank, 177 Ga. App. 115, 338 S.E.2d 466 (1985).

Evidence of repeatedly late payments creates factual dispute as to creation of quasi new agreement.

- Evidence of the buyer's repeatedly late, irregular payments, which are accepted by the seller creates a factual dispute as to whether a quasi new agreement was created. Greater Leasing, Inc. v. Hill, 158 Ga. App. 547, 281 S.E.2d 303 (1981).

Cited in Hasbrouck v. Bondurant & McKinnon, 127 Ga. 220, 56 S.E. 241 (1906); Mathis v. Harrell, 1 Ga. App. 358, 58 S.E. 207 (1907); Bush v. West Yellow Pine Co., 2 Ga. App. 295, 58 S.E. 529 (1907); Fitzgerald Cotton Oil Co. v. Farmers Supply Co., 3 Ga. App. 212, 59 S.E. 713 (1907); Kennesaw Guano Co. v. Miles & Co., 132 Ga. 763, 64 S.E. 1087 (1909); Strickland v. Bank of Cartersville, 141 Ga. 565, 81 S.E. 886 (1914); McNatt v. Clarke Bros., 143 Ga. 159, 84 S.E. 447 (1915); Atlanta Oil & Fertilizer Co. v. Phosphate Mining Co., 144 Ga. 75, 86 S.E. 216 (1915); Standard Coal Co. v. Eclipse Coal Co., 24 Ga. App. 717, 102 S.E. 137 (1920); Smith v. Harrison, 26 Ga. App. 325, 106 S.E. 191 (1921); Rauschenberg v. Peeples, 30 Ga. App. 384, 118 S.E. 409 (1923); Kennedy v. Walker, 156 Ga. 711, 120 S.E. 105 (1923); Breman v. Rodbell, 31 Ga. App. 358, 120 S.E. 697 (1923); Buckeye Cotton Oil Co. v. Malone, 33 Ga. App. 519, 126 S.E. 913 (1925); Stoddard v. Churchill Line, 37 Ga. App. 347, 140 S.E. 778 (1927); Googe v. York, 38 Ga. App. 62, 142 S.E. 562 (1928); White v. Dotson, 41 Ga. App. 436, 153 S.E. 233 (1930); Smith v. Gholstin, 45 Ga. App. 287, 164 S.E. 217 (1932); Eaves v. Georgian Co., 47 Ga. App. 37, 169 S.E. 519 (1933); Craig v. Craig, 53 Ga. App. 632, 186 S.E. 755 (1936); Byrd v. Prudential Ins. Co. of Am., 182 Ga. 800, 187 S.E. 1 (1936); Commercial Cas. Ins. Co. v. Campbell, 54 Ga. App. 530, 188 S.E. 362 (1936); Byrd v. Prudential Ins. Co. of Am., 185 Ga. 625, 196 S.E. 72 (1938); Southern Sav. Bank v. Dickey, 58 Ga. App. 718, 199 S.E. 546 (1938); Sovereign Camp, W.O.W. v. Hart, 187 Ga. 304, 200 S.E. 296 (1938); Christian v. Bremer, 199 Ga. 285, 34 S.E.2d 40 (1945); Arnold v. Selman, 83 Ga. App. 145, 62 S.E.2d 915 (1950); Sachs v. Jones, 83 Ga. App. 441, 63 S.E.2d 685 (1951); Gaulding v. Courts, 90 Ga. App. 472, 83 S.E.2d 288 (1954); Maguire v. Ivey, 212 Ga. 151, 91 S.E.2d 35 (1956); ABC Sch. Supply, Inc. v. Brunswick-Balke-Collender Co., 97 Ga. App. 84, 102 S.E.2d 199 (1958); Few v. Automobile Financing, Inc., 101 Ga. App. 783, 115 S.E.2d 196 (1960); In re Wilder, 225 F. Supp. 67 (M.D. Ga. 1963); Hewitt Contracting Co. v. Bridgeboro Lime & Stone Co., 111 Ga. App. 261, 141 S.E.2d 211 (1965); Commonwealth United Corp. v. Rothberg, 221 Ga. 175, 143 S.E.2d 741 (1965); Lunsford v. Wilson, 113 Ga. App. 602, 149 S.E.2d 515 (1966); Chalkley v. Ward, 119 Ga. App. 227, 166 S.E.2d 748 (1969); Hughes v. Town Fin. Corp., 129 Ga. App. 571, 200 S.E.2d 366 (1973); Hutcheson v. American Mach. & Foundry Co., 129 Ga. App. 602, 200 S.E.2d 371 (1973); Ryder Truck Lines v. Scott, 129 Ga. App. 871, 201 S.E.2d 672 (1973); Abercrombie v. Howard, Weil, Labouisse, Fredericks, Inc., 136 Ga. App. 79, 220 S.E.2d 275 (1975); Marsh v. Frederick W. Berens, Inc., 237 Ga. 135, 227 S.E.2d 36 (1976); Roberts v. Cameron-Brown Co., 556 F.2d 356 (5th Cir. 1977); Linch v. McNeil Real Estate Fund VI, Ltd., 146 Ga. App. 505, 246 S.E.2d 718 (1978); Hayes v. Fidelity Acceptance Corp., 147 Ga. App. 144, 248 S.E.2d 209 (1978); Auerbach v. First Nat'l Bank, 147 Ga. App. 288, 248 S.E.2d 551 (1978); Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978); Ford Motor Credit Co. v. Ledbetter, 582 F.2d 1012 (5th Cir. 1978); Reese v. Robins Fed. Credit Union, 150 Ga. App. 1, 256 S.E.2d 604 (1979); Smith v. General Fin. Corp., 150 Ga. App. 269, 257 S.E.2d 302 (1979); Browning v. Rewis, 152 Ga. App. 45, 262 S.E.2d 174 (1979); Williams v. Doster, 153 Ga. App. 174, 264 S.E.2d 707 (1980); Rewis v. Browning, 153 Ga. App. 352, 265 S.E.2d 316 (1980); McKinney v. South Boston Sav. Bank, 156 Ga. App. 114, 274 S.E.2d 34 (1980); Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980); Heard v. Decatur Fed. Sav. & Loan Ass'n, 157 Ga. App. 130, 276 S.E.2d 253 (1980); In re Bagley, 6 Bankr. 387 (Bankr. N.D. Ga. 1980); Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981); Jones v. First Carolina Fin. Corp., 158 Ga. App. 818, 282 S.E.2d 364 (1981); Newby v. Bank of Pinehurst, 159 Ga. App. 890, 285 S.E.2d 605 (1981); Decatur Invs. Co. v. McWilliams, 162 Ga. App. 181, 290 S.E.2d 526 (1982); Brookhaven Landscape & Grading Co. v. J.F. Barton Contracting Co., 676 F.2d 516 (11th Cir. 1982); Shalom Farms, Inc. v. Columbus Bank & Trust Co., 169 Ga. App. 145, 312 S.E.2d 138 (1983); Barnett v. First Fed. Sav. & Loan Ass'n, 169 Ga. App. 396, 313 S.E.2d 115 (1984); Duncan v. Lagunas, 253 Ga. 61, 316 S.E.2d 747 (1984); Computer Maintenance Corp. v. Tilley, 172 Ga. App. 220, 322 S.E.2d 533 (1984); Thomas v. Ralston Purina Co., 43 Bankr. 201 (Bankr. M.D. Ga. 1984); Exxon Corp. v. Butler, 173 Ga. App. 146, 325 S.E.2d 806 (1984); Eaves v. J.C. Bradford & Co., 173 Ga. App. 470, 326 S.E.2d 830 (1985); Georgia Income Property Corp. v. Murphy, 182 Ga. App. 101, 354 S.E.2d 859 (1987); Dennis v. Independent Fire Ins. Co., 187 Ga. App. 261, 370 S.E.2d 24 (1988); Gibbs v. Green Tree Acceptance, Inc., 188 Ga. App. 633, 373 S.E.2d 637 (1988); Main Station, Inc. v. Atel I, Inc., 190 Ga. App. 205, 378 S.E.2d 393 (1989); Hill v. Federal Employees Credit Union, 193 Ga. App. 44, 386 S.E.2d 874 (1989); Borden v. Pope Jeep-Eagle, Inc., 200 Ga. App. 176, 407 S.E.2d 128 (1991); Gordon v. South Cent. Farm Credit, 213 Ga. App. 816, 446 S.E.2d 514 (1994); Allstate Ins. Co. v. Ackley, 227 Ga. App. 104, 488 S.E.2d 85 (1997); McCarter v. Bankers Trust Co., 247 Ga. App. 129, 543 S.E.2d 755 (2000); Holy Fellowship Church of God in Christ v. First Cmty. Bank, 248 Ga. App. 372, 545 S.E.2d 164 (2001); Vratsinas Constr. Co. v. Triad Drywall, LLC, 321 Ga. App. 451, 739 S.E.2d 493 (2013).

Evidence admissible for purpose of determining whether there is quasi new agreement.

- In determining whether or not there is quasi new agreement based upon bank's acceptance of late and irregular payments such that debtor was entitled to notice that bank was going to accelerate for default, finder of fact was restricted to evidence of course of dealings between parties up to date of acceleration. Adamson v. Trust Co. Bank, 155 Ga. App. 646, 271 S.E.2d 899 (1980).

New contract of insurance was not created upon an insured's move to Georgia from the state where the policy was issued, and the original contract remained in effect. World Ins. Co. v. Branch, 966 F. Supp. 1203 (N.D. Ga. 1997), vacated on other grounds, 156 F.3d 1142 (11th Cir. 1998).

Settlement negotiations are not admissible in evidence, and do not constitute a "waiver" of either party's claim or defense. Citadel Corp. v. Sun Chem. Corp., 212 Ga. App. 875, 443 S.E.2d 489 (1994).

Subsequent performance by parties is sufficient consideration to support quasi new agreement.

- Although attempt at modification of original written contract may not satisfy statute of frauds, where modification of written contract has been agreed to by all parties, performed by one and accepted by other, there is waiver of provisions of original contract. Lester v. Trust Co., 144 Ga. App. 526, 241 S.E.2d 633 (1978).

Delay in deposit of payment checks.

- Evidence that holder of note deposited some payment checks after the due date is not evidence of a mutual disregard of the due date so as to create a quasi new agreement. Shick Moulding & Frame Co. v. Edwards, 163 Ga. App. 879, 296 S.E.2d 161 (1982).

Subsequent performance sufficient consideration for new agreement.

- When both parties clearly agreed to the substitution of the diesel-powered forklift for the gasoline-powered lift described in a written contract, and, regardless of the reason lessee requested replacement of the original forklift, the lessor complied with the request and the lessee continued to pay the regular monthly rentals, such subsequent performance was sufficient consideration to support the "quasi new agreement" defined by O.C.G.A. § 13-4-4. Southwest Plaster & Drywall Co. v. R.S. Armstrong & Bros. Co., 166 Ga. App. 373, 304 S.E.2d 500 (1983).

Debtor's failure to make half of installment payments entitled creditor to institute foreclosure proceedings.

- Since the debtor was not merely late and irregular in making the debtor's payments, but had failed altogether to make five of the ten monthly installment payments which had become due as of the time the notice of foreclosure was published, the creditor clearly was entitled pursuant to the terms of the security agreement to accelerate the entire balance due and to institute foreclosure proceedings. Lewis v. Citizens & S. Nat'l Bank, 174 Ga. App. 847, 332 S.E.2d 11 (1985).

Payments made after acceleration are considered payments on amount of full indebtedness rather than installment payments made pursuant to any quasi new contract between the parties. Adamson v. Trust Co. Bank, 155 Ga. App. 646, 271 S.E.2d 899 (1980).

Acceptance of partial payment of past-due indebtedness does not nullify prior acceleration.

- Since debtor was several payments behind at time note was accelerated, acceptance of partial payment by bank thereafter did not nullify acceleration of debt nor maturity of remainder of indebtedness. Adamson v. Trust Co. Bank, 155 Ga. App. 646, 271 S.E.2d 899 (1980).

Borrower failed to show "mutual and intended" departure.

- Borrower failed to state a claim for mutual departure because the borrower failed to allege facts sufficient to support that the borrower and the loan servicer made a "mutual and intended" departure from the terms of the borrower's loan. Phillips v. Ocwen Loan Servicing, LLC, F. Supp. 2d (N.D. Ga. Sept. 10, 2013).

Trial court did not err in concluding that, within the framework of the complaint, that the mortgagor's assertion that the parties to the loan had entered into a quasi-contract did not state any basis for a wrongful foreclosure claim because there could be no departure from the terms of the contract for purposes of O.C.G.A. § 13-4-4 if, as alleged, the mortgagor complied with the mortgagee's instruction not to make payments on the loan. Mbigi v. Wells Fargo Home Mortg., 336 Ga. App. 316, 785 S.E.2d 8 (2016).

Acceptance of benefits after notice of anticipated breach waives breach.

- One having accepted benefits arising under contract after being notified of anticipated breach, and not having given notice of intention to rely on its exact terms, but having continued to accept benefits thereunder, may not recover for such alleged breach or failure to perform fully the complete terms of original agreement. Acceptance of such benefits after notice of alleged breach will constitute waiver of breach. B-Lee's Sales Co. v. Shelton, 141 Ga. App. 870, 234 S.E.2d 702 (1977).

Time limit for performance waived when performance accepted after such time.

- When performance accepted after expiration of time limit, the failure to comply with this condition of contract will be considered waived. ABC Sch. Supply, Inc. v. Brunswick-Balke-Collender Co., 97 Ga. App. 84, 102 S.E.2d 199 (1958).

Accepting benefits and continuing performance after deviation prevents subsequent suit for benefits under original agreement.

- When petition discloses that defendant violated and changed terms of contract, and plaintiff elected to accept breach and abide by changes by continuing to perform services thereunder and receive benefits therefrom without objection or protest, plaintiff cannot thereafter, upon terminating the plaintiff's services with the defendant, maintain suit for benefits which the plaintiff claims accrued to the plaintiff under original contract but after alleged breach and changes in contract occurred. Luke v. McGuire Ins. Agency of Ga., Inc., 133 Ga. App. 948, 212 S.E.2d 889 (1975).

Parent of three children was liable for the children's tuition for the 2011-2012 school year after the children did not attend the school, based on tuition contracts the parent signed; the parent failed to show that the school's historically flexible execution of contracts demonstrated a departure from enforcing the notice requirement for the withdrawal of the parent's students from the school under O.C.G.A. § 13-4-4, and the amount owed was not an unenforceable penalty. Pierre v. St. Benedict's Episcopal Day School, 324 Ga. App. 283, 750 S.E.2d 370 (2013).

Oral agreements and understandings that the note could be paid upon a mutually agreeable schedule cannot be used by the defendant to contradict the plain and unambiguous language of the note. Minor v. Citizens & S. Nat'l Bank, 177 Ga. App. 115, 338 S.E.2d 466 (1985).

Immaterial variations.

- In contract for inspection of pipeline, plaintiff's purchase orders quoting per foot rate only were not sufficiently and clearly at variance with defendant's offer as to unambiguously evince a clear intention of plaintiff to depart from offer's basis and from custom in trade that per foot rate was based on projected production hours and that extra inspection work for fault in production would earn extra pay. Colonial Pipeline Co. v. Robert W. Hunt Co., 164 Ga. App. 91, 296 S.E.2d 633 (1982).

Occasional maintenance sufficient to vary lease is jury question.

- After lessor admitted that the lessor had performed occasional maintenance and repair on a leased forklift, although it attempted to explain that such conduct was strictly voluntary and done primarily to protect the lessor's investment in the equipment, this performance conflicted with the written lease provision which required lessee to maintain and repair the machine, and it posed a question for the jury as to whether this conduct resulted in a waiver of that provision. Southwest Plaster & Drywall Co. v. R.S. Armstrong & Bros. Co., 166 Ga. App. 373, 304 S.E.2d 500 (1983).

If a pattern or course of conduct has been established which departs from the express contractual provisions for the payment of premiums on a health insurance policy, and the insurer never gives the insured notice of the insurer's intent to return to and rely upon the exact terms of the policy regarding the payment of premiums, the insurer cannot rely upon the insured's failure to make payment of a premium by the date specified in the policy as the basis for asserting an automatic termination of the policy as a matter of law. General Am. Life Ins. Co. v. Samples, 167 Ga. App. 622, 307 S.E.2d 51 (1983).

By reinstating insurance coverage "without interruption" upon receipt of the premium on several previous occasions after the policy had supposedly been cancelled for nonpayment of premium, the insurer may have led the insured to believe the insurer would continue to follow this practice in the future, thereby creating a quasi-new agreement with the insured to that effect. The issue, then, was not whether the insurance was properly cancelled for nonpayment of premium but whether, as a result of a quasi-new agreement created by the past conduct of the parties, the policy was reinstated following such cancellation. Holland v. Allstate Ins. Co., 200 Ga. App. 668, 409 S.E.2d 79 (1991).

When a bank opened a corporate account without a contemporaneous corporate resolution, the bank was required to notify the customer of the bank's intent to rely on strict compliance with the contract terms on the deposit agreement requiring such resolution when the customer sought to change authorized signers on the account. First Union Nat'l Bank v. Davies-Elliott, Inc., 215 Ga. App. 498, 452 S.E.2d 132 (1994).

In a civil action arising from a creditor's repossession of a debtor's vehicle, summary judgment on a debtor's conversion and punitive damages claims against a creditor was reversed as the trial court erroneously found that the debtor's failure to demand that the creditor return the subject vehicle was fatal to the claim, given that the creditor wrongfully repossessed and then sold the car subject to the parties' finance agreement, and hence no demand was necessary; moreover, by repeatedly accepting late payments, the creditor could have willingly departed from the terms of the agreement and thus be precluded from enforcing the strict letter of the agreement without first giving reasonable notice to the debtor of the creditor's intent to do so, and there was evidence on which a jury could find that the creditor's failure to give the debtor reasonable notice of the creditor's intent to strictly enforce the payment provisions rendered the repossession and subsequent sale unlawful. Williams v. Nat'l Auto Sales, Inc., 287 Ga. App. 283, 651 S.E.2d 194 (2007).

No default had occurred, based on the fact that the payees had established a practice of accepting late payments on a note in the past and had then declared a default without granting "reasonable notice" of the payees' intention to rely on the strict terms of the note, a letter requiring strict compliance never having been received. Williams v. Sessions, 171 Ga. App. 662, 320 S.E.2d 791 (1984).

Performance deviating from terms, accepted as mere indulgence, not considered mutual departure.

- If one of party to contract, in accepting performance by other party not strictly in accordance with terms of contract, does so merely gratuitously or by way of indulgence, then it cannot be said that acceptance of performance under those circumstances supplies requisite intent on part of party so accepting performance as to render departure mutual. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).

One acceptance of late premium payment not enough to require notice.

- For conditional acceptance of overdue premium to amount to waiver, condition must be fulfilled; and one acceptance of a late payment is not enough to require insurer to give notice to insured of intention to rely on exact terms of agreement as provided by law. Sovereign Camp, W.O.W. v. Whitaker, 57 Ga. App. 418, 195 S.E. 584 (1938).

Mere acceptance of two or three late premium payments not waiver of due date provision.

- When seller, on more than one occasion and without any express agreement to modify original contract, and without additional consideration moving the seller to do so, accepts from purchaser several partial payments, this would not be such departure from terms of contract as to necessitate notice from vendor to vendee of intention to rely upon exact terms of original contract relating to payments as condition precedent to bringing of suit in trover to recover property. Sewell v. C.I.T. Corp., 43 Ga. App. 676, 160 S.E. 99 (1931).

Mere acceptance by insurer on two or three occasions of monthly or periodic premium payments after their due date or beyond grace period provided in policy would not, standing alone, constitute waiver of provisions of policy respecting time of payment of premium nor make for parties a new contract in that regard upon which insured would be entitled to rely and insist. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).

Acceptance of some installments after due date not sufficient deviation to require notice.

- Mere fact that defendant paid some installments after the installments were due and in amounts less than stipulated sum, without any subsequent agreement to do so and without any consideration therefor, would not be sufficient to show such departure from original contract as to require notice from plaintiff of intention to comply with strict terms thereof before plaintiff could insist upon forfeiture. Hill v. Sterchi Bros. Stores, 50 Ga. App. 193, 177 S.E. 353 (1934).

Continued acceptance of installments of half the amount required was an insufficient departure to require notice. Young v. Durham, 15 Ga. App. 678, 84 S.E. 165 (1915).

Seller's acceptance of repeated irregular payments creates factual issue as to quasi new agreement.

- Evidence of seller's acceptance of buyer's repeated, late, irregular, payments, creates factual dispute as to whether quasi new agreement was created. Smith v. General Fin. Corp., 243 Ga. 500, 255 S.E.2d 14 (1979).

As a general rule, evidence of acceptance by a creditor of repeated, late, irregular payments from a debtor creates a factual question as to the formation of a quasi new agreement. Lewis v. Citizens & S. Nat'l Bank, 174 Ga. App. 847, 332 S.E.2d 11 (1985).

Acceptance of late premium payments.

- A life insurer which did not solicit premium payments outside of the grace period, but on two occasions accepted late payments after expiration of grace period, did not by these actions change the original contract agreement which required that payments be made within grace period in order for the policy to be valid. Prudential Ins. Co. of Am. v. Nessmith, 174 Ga. App. 39, 329 S.E.2d 249 (1985).

When a policy was cancelled due to nonpayment, there was no material issue of fact under O.C.G.A. § 13-4-4 based on the insurer's practice of accepting late premium payments. The insured did not show that the insurer had ever reinstated the policy after the insured sent a notice of cancellation or that any reinstatement following cancellation was without interruption of coverage; moreover, in the insurer's cancellation notice, the insurer had provided advance written notice of the insurer's intent to expressly rely on the policy terms. Zilka v. State Farm Mut. Auto. Ins. Co., 291 Ga. App. 665, 662 S.E.2d 777 (2008).

Acceptance of late rental payment.

- When the evidence showed only one instance of defendants' acceptance of a late rental payment, such was not enough to invoke the notice requirement of O.C.G.A. § 13-4-4. Spooner v. Lossiah, 185 Ga. App. 876, 366 S.E.2d 236 (1988).

No evidence of toleration of failure to make payments.

- Payee was entitled to recover the accelerated unpaid balance on a note since there was no evidence that the payee tolerated a previous three-month failure to make any payments on the note such that the payor would be entitled to receive notice before the payee could effect a valid acceleration. Booth v. Gwinnett Fed. Sav. & Loan Ass'n, 200 Ga. App. 60, 406 S.E.2d 568 (1991).

Record was devoid of any evidence that the bank agreed to tolerate the debtor's non-payment or intended to forego the bank's enforcement rights under the note; the debtor made required payments until the debtor completely stopped making any payments. Thus, the guarantor's claim of waiver under O.C.G.A. § 13-4-4 was meritless. Salahat v. FDIC, 298 Ga. App. 624, 680 S.E.2d 638 (2009).

No mutual departure from terms of lease.

- Trial court was authorized to find that the landlord and the tenant never mutually departed from the terms of the lease to relieve the tenant from paying common area maintenance (CAM) charges or to permanently forgive a portion of the monthly rent that was owed; the landlord agreed to allow the tenant to temporarily pay a reduced amount of monthly rent but with the understanding that there would be no permanent rent forgiveness and that the tenant would remain liable for the accrued shortfall in base rent and CAM charges, and the landlord sent the tenant a letter consistent with that understanding. Westmoreland v. JW, LLC, 313 Ga. App. 486, 722 S.E.2d 102 (2012).

Mutual departure from the terms of an agreement results in a quasi-new agreement suspending the original terms of the agreement until one party has given the other reasonable notice of the parties' intent to rely on the original terms, and the question whether the parties' mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury. Circle K Stores, Inc. v. T. O. H. Assocs., 318 Ga. App. 753, 734 S.E.2d 752 (2012).

Departure from a no-pet clause.

- Mutual departure from a no-pet clause in a lease did not provide a defense to a dispossessory action against a tenant. Father & Son Moving & Storage Co. v. Peachtree Airport Park Joint Venture, 229 Ga. App. 860, 495 S.E.2d 87 (1998).

No consideration provided for departure from agreement's terms.

- Partner's affirmative defense of mutual departure failed as a matter of law because there was no evidence that there was any receipt or payment of money or other consideration provided to the other partner for a departure from the terms of the partnership agreement. AAF-McQuay, Inc. v. Willis, 308 Ga. App. 203, 707 S.E.2d 508 (2011).

No mutual departure.

- Trial court properly found in favor of a software company and terminated the contract because the testimony before the trial court established that while the software company sometimes accepted late payment, it also complained of the gaming company's untimeliness and insisted on regular payments; thus, under the evidence, the trial judge was authorized to find that the requirements of a mutual disregard of the contract were not present. Okla. Gaming Ventures v. PCT Holdings, LLC, 340 Ga. App. 120, 796 S.E.2d 752 (2017).

Question of fact as to default.

- Since evidence indicated that lessees were in default during many months of the lease and evidence was in dispute as to lessor's notice that it intended to adhere to the strict terms of the lease, a question of fact arose as to the applicability of O.C.G.A. § 13-4-4 and the trial court erred in issuing a directed verdict in lessor's favor. Ford v. Rollins Protective Servs. Co., 171 Ga. App. 882, 322 S.E.2d 62 (1984).

Jury instruction.

- A pattern jury instruction suggesting that acceptance of past due payments is not the sort of variance deemed to be a mutual departure, that it must somehow be more "substantial," ignored the language of O.C.G.A. § 13-4-4; however, the giving of such instruction was harmless where the mutual departure from the due date terms was not the result of a course of conduct or business practice, but was based on a new agreement deferring specific payments. Wright Carriage Co. v. Business Dev. Corp. of Ga., Inc., 221 Ga. App. 49, 471 S.E.2d 218 (1996).

A pattern jury instruction stating the requirement that a jury may only find that terms established by the course of conduct or business practices of the parties have replaced written express terms if the new terms are definite and clear does not conflict with O.C.G.A. § 13-4-4. Wright Carriage Co. v. Business Dev. Corp. of Ga., Inc., 221 Ga. App. 49, 471 S.E.2d 218 (1996).

Departure from terms so as to remove agreement from statute of frauds.

- See Williamson & Co. v. Dodd, 31 Ga. App. 572, 121 S.E. 523 (1924).

Immaterial variations.

- See Yancey v. Warner Elevator Mfg. Co., 6 Ga. App. 125, 64 S.E. 663 (1909).

Intent to require strict compliance after mutual departure.

- Mutual departure by the parties from the terms of a workers' compensation policy required the insurer to give reasonable notice of an intent to require strict compliance since there was some evidence that in handling disputes over the audited amounts of premiums due, the insurer typically cancelled the policy but reinstated the policy once an agreement on the premium was reached and the money paid. Travelers Ins. Co. v. Adkins, 200 Ga. App. 278, 407 S.E.2d 775 (1991).

Agency was not entitled to summary judgment in the general contractor's breach of contract action; there was evidence to support the contractor's claim, under O.C.G.A. § 13-4-4, that the parties mutually departed from the contractual requirement that the contractor demonstrate insurance coverage before each stage and that the agency, therefore, waived its right to terminate the agreement on this basis absent notice of its reliance on the original terms. Vakilzadeh Enters. v. Hous. Auth., 281 Ga. App. 203, 635 S.E.2d 825 (2006).

After giving notice, one may insist upon rights accruing to one under original agreement.

- In event of departure, one party to contract may, upon giving reasonable notice to other of intention to return to and pursue letter of agreement, insist upon any rights accruing to that party under original agreement after such notice has been given. American Iron & Metal Co. v. National Cylinder Gas Co., 105 Ga. App. 458, 125 S.E.2d 106 (1962).

In mortgage contracts, reasonable notice requires more than assertion of acceleration clause, for other party must be given reasonable opportunity to cure any deviations from exact terms before foreclosure can be commenced due to defaults which were tolerated under quasi new agreement. Curl v. Federal Sav. & Loan Ass'n, 241 Ga. 29, 244 S.E.2d 812 (1978).

Notice as jury question.

- Since contract was mutually departed from regarding rent and responsibility for taxes, whether or not notice of default was properly given became a jury question. Brackett v. Cartwright, 231 Ga. App. 536, 499 S.E.2d 905 (1998).

Acceptance of late note payments.

- Trial court's grant of summary judgment to a decedent's estate executrix in an action against note debtors, finding that due to the debtors' untimely payments to the decedent, the debtors could not rely on a self-executing cancellation provision that provided that the debtors obligations under a promissory note to the decedent terminated upon death, was error, as the decedent's acceptance of untimely payments on the note raised an issue of fact as to whether the decedent waived the timely payment requirement pursuant to O.C.G.A. § 13-4-4; however, the debtors were not entitled to judgment as a matter of law where the decedent, who was 90 years old and had Alzheimer's Disease at the time of the note and cancellation execution, may not have had the capacity to enter into those agreements. Callahan v. Cox, 279 Ga. App. 368, 631 S.E.2d 405 (2006).

For section to apply, circumstances must be such as to imply mutual new agreement.

- While it was true, as recognized by former Code 1933, §§ 20-115 and 20-116 (see O.C.G.A. §§ 13-4-4 and13-4-5), that parties may depart from terms of original contract, and that such departure will imply modification of contract, in order for rule to apply it was necessary that circumstances be such as will in law imply mutual new agreement, so that modification, when taken in connection with new contract will provide new and distinct agreement, complete in its terms. 1948-49 Op. Att'y Gen. p. 27.

ALR.

- Effect, after lapse of full period, or attempt to terminate contract without notice, or upon notice allowing a shorter period than that stipulated, 35 A.L.R. 893.

Waiver or estoppel by previous custom of insurer to accept premiums upon tender not in compliance with provisions of policy as applicable where tender according to previous custom was refused, 136 A.L.R. 1219.

Existence of more than one contract between owner and contractor as affecting notice or filing of mechanic's lien by materialman or subcontractor, 175 A.L.R. 330.

Effect, as between landlord and tenant, of lease clause restricting the keeping of pets, 114 A.L.R.5th 443.