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). 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). 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). 230 13-4-4 MODIFICATION, EXTINGUISHMENT, AND RENEWAL 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). Notice Notice required only where it appears there was mutual intention to depart from contract terms. Selman v. Manis, 100 Ga. App. 422, 111 S.E.2d 747 (1959). Since the evidence showed that there was no deviation from the contract terms, notice under O.C.G.A. § 13-4-4 was not required. Cloud v. Georgia Cent. Credit Union, 214 Ga. App. 594, 448 S.E.2d 913 (1994). Lessor did not have to provide notice of lessor’s intention to hold lessees to terms of the original lease after the parties agreed to an assignment, since the lease contemplated the possibility of assignment and provided that the original lessees remained liable for the payment of rent and other obligations thereunder. Mullis v. Shaheen, 217 Ga. App. 277, 456 S.E.2d 764 (1995). After mutual departure from terms, until notice given, departure constitutes quasi new agreement. Verner v. McLarty, 213 Ga. 472, 99 S.E.2d 890 (1957). 13-4-4 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). Sufficiency a Jury Question 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). 231 Sufficiency a Jury Question (Cont’d) 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 dece- 13-4-5 dent’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).