Smith v. GENERAL FINANCE CORPORATION OF GEORGIA , 243 Ga. 500 ( 1979 )

243 Ga. 500 (1979) 255 S.E.2d 14

SMITH
v.
GENERAL FINANCE CORPORATION OF GEORGIA.

34562.

Supreme Court of Georgia.

Argued February 21, 1979. Decided April 5, 1979. Rehearing Denied April 17, 1979.

Joseph H. King, Jr., for appellant.

Steven Gottlieb, Elizabeth Coleman-Stroup, amicus curiae.

Lewis N. Jones, for appellee.

MARSHALL, Justice.

The following question in this case has been certified to this court by the Court of Appeals: "In a suit for damages for alleged wrongful repossession of an automobile, arising out of a claimed default under a time payment contract of sale, does the evidence of repeated late, irregular payments accepted by the seller create a factual dispute as to whether a quasi new agreement was created under Code § 20-116, according to the decision of Curl v. Federal Savings &c. Assn., 241 Ga. 29 (244 SE2d 812) and as held in Hayes v. Fidelity Accept. Corp., 147 Ga. App. 144 (248 SE2d 209); or does the language in the loan contract providing that: `The failure of Seller ... to enforce Seller's rights ... shall not be construed as waiver of any provision ... nor shall it preclude Seller from exercising any of his rights with respect to a subsequent breach of this agreement ...' preclude a jury question, as held in Fair v. General Finance Corp. of Ga., 147 Ga. App. 706 (250 SE2d 9) (1978)?"

As held in J.E.M. Enterprises v. Taco Pronto, Inc., 145 Ga. App. 573 (3) (244 SE2d 253) (1978); Crawford v. First Nat. Bank of Rome, 137 Ga. App. 294, 295 (223 SE2d 488) (1976); Abercrombie v. Howard, Weil, LaBouisse, Fredericks, Inc., 136 Ga. App. 79 (2) (220 SE2d 275) (1975); Few v. Automobile Financing, Inc., 101 Ga. App. 783, 784 (115 SE2d 196) (1960); and Commercial Cas. Ins. Co. v. Campbell, 54 Ga. App. 530, 533, 534 (188 SE 362) (1936), a provision in a contract against waiver of contractual rights may itself be found by the jury to have been waived. Insofar as Fair v. General Finance Corp. of Ga., supra, indicates otherwise, it is disapproved.

Accordingly, our answer to the certified question is that evidence of the buyer's repeated, late, irregular payments; which are accepted by the seller, does create a factual dispute as to whether a quasi new agreement was created under Code § 20-116, and a jury question is also raised as to whether the anti-waiver provision in the loan contract was itself waived.

Certified question answered in the affirmative, with further answer that a jury question is also raised as to whether the anti-waiver provision in the loan contract was itself waived. All the Justices concur.