Opinion
64688.
DECIDED OCTOBER 14, 1982.
Action on note. Fulton State Court. Before Judge Langham.
M. David Harrison, for appellant.
R. Britt Harris, Jr., for appellees.
This is an appeal from a grant of summary judgment to the appellees in their suit to collect the balance due on a promissory note.
The following material facts are undisputed. By written agreement dated November 11, 1975, the appellant assumed and agreed to pay a promissory note payable to the appellees in the principal amount of $119,524. The note called for repayment in 120 monthly installments, due on the 20th of the month, with interest at 6 percent per annum. On February 23, 1977, the appellees notified the appellant in writing "that from this point onward we will strictly enforce the provisions relative to time being of the essence and unless the monthly installment is received . . . not later than the 20th day of each month, then upon any such default in payment you may consider that the entire indebtedness shall be immediately accelerated and demand will be made for its payment in full." From the date of this notice through August 20, 1981, the appellees received each monthly installment by the 20th, 1981 day of the month. However, the payment due September 20, 1981, was postmarked September 22, 1981, and was not received by the appellees until September 23, 1981. On that same date, the appellees notified the appellant that they were exercising the right of acceleration and demanded payment in full. In this appeal, the appellant contends that because there is evidence that the appellees often did not deposit the monthly payment checks until after the 20th of the month, an issue of fact exists as to whether there was a mutual temporary disregard of the due date so as to create a "quasi new agreement" pursuant to Code § 20-116. Held:
The fact that the appellees may have deposited some of the checks after the 20th cannot reasonably be interpreted as evidencing a disregard of the appellant's obligation to make payment by the 20th. The judgment in favor of the appellees is accordingly affirmed; and, since there appears to have been no valid reason to anticipate reversal of the judgment below, the appellees' motion for imposition of damages pursuant to Code Ann. § 6-1801 is granted. See generally Hatchett v. Hatchett, 240 Ga. 103 ( 239 S.E.2d 512) (1977); City of Atlanta v. State Farm Fire c. Co., 160 Ga. App. 822, 824 ( 287 S.E.2d 665) (1982).
Judgment affirmed with damages. McMurray, P. J., and Smith, J., concur.