Supreme Court of Georgia, 1979

Smith v. GENERAL FINANCE CORPORATION OF GEORGIA

Supreme Court of Georgia · Decided April 5, 1979 · Marshall

255 S.E.2d 14; 243 Ga. 500; 1979 Ga. LEXIS 960 (South Eastern Reporter, Second Series)

Cases that cite this one

43 later published cases cite this decision. The 25 that cite it most often are listed here.

The HATCHETT FIRM, P.C. v. ATLANTA LIFE FINANCIAL GROUP, INC. (Ga. Ct. App. 2021)
Wright Carriage Co. v. Business Development Corp. of Georgia, Inc. (Ga. Ct. App. 1996)
Battista v. Savings Bank of Baltimore (Md. Ct. Spec. App. 1986)
Integrated Micro Systems, Inc. v. NEC Home Electronics (USA), Inc. (Ga. Ct. App. 1985)
Shalom Farms, Inc. v. Columbus Bank & Trust Co. (Ga. Ct. App. 1983)
Yash Solutions, LLC v. New York Global Consultants Corporation (Ga. Ct. App. 2019)
Banks v. Echols (Ga. Ct. App. 2010)
Baxter v. Georgia Federal Savings & Loan Ass'n (Ga. Ct. App. 1979)
J.P. CAREY ENTERPRISES, INC. v. CUENTAS, INC., F/K/A NEXT GROUP HOLDINGS, INC. (Ga. Ct. App. 2021)
Wolf Creek Landfill, LLC v. Twiggs County (Ga. Ct. App. 2016)
Wpd Center, LLC v. Watershed, Inc. (Ga. Ct. App. 2014)
Sacred Heart Health Systems, Inc. v. Humana Military Healthcare Services, Inc. (11th Cir. 2010)
Minor v. Chase Auto Finance Corp. (Ark. 2010)
Radha Krishna, Inc. v. Desai (Ga. Ct. App. 2009)
Williams v. National Auto Sales, Inc. (Ga. Ct. App. 2007)
Vakilzadeh Enterprises, Inc. v. Housing Authority of County of Dekalb (Ga. Ct. App. 2006)
Glimcher Properties, L.P. v. Bi-Lo, LLC (Ga. Ct. App. 2005)
Benedict v. Snead (Ga. 1999)
Atlantic Coast Federal Credit Union v. Delk (Ga. Ct. App. 1999)
Georgia Color Farms, Inc. v. K.K.L., Ltd. Partnership (Ga. Ct. App. 1998)
Cloud v. Georgia Central Credit Union (Ga. Ct. App. 1994)
Kessel v. Western Savings Credit Union (N.D. 1990)
Lehigh Press, Inc. v. National Bank (Ga. Ct. App. 1989)
Kusuma v. Metametrix, Inc. (Ga. Ct. App. 1989)
Lewis v. Citizens & Southern National Bank (Ga. Ct. App. 1985)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

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 accépted 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 *501 this agreement . . preclude a jury question, as held in Fair v. General Finance Corp. of Ga., 147 Ga. App. 706 (250 SE2d 9) (1978)?”

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.

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.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.