(punctuation omitted)); MNM 5, Inc. v. Anderson/6438 Northeast Partners, Ltd., 215 Ga.App. 407, 410, 451 S.E.2d 788 (1994) (same); Stapleton v. Dismukes, 43 Ga.App. 611, 620(c), 159 S.E. 768 (1931) (same) (quoting Berman v. Fraternities Health & Acc. Ass'n, 107 Me. 368, 78 A. 462, 464 (1910)—the case from which this language originates).D.I. Corbett Electric, Inc. v. Venture Constr. Co., 140 Ga.App. 586, 588(2), 231 S.E.2d 536 (1976) (punctuation omitted); see also Plumer v. Continental Cas. Co., 12 Ga.App. 594, 599, 77 S.E. 917 (1913) (same).Goldsmith, 307 Ga.App. at 28(1), 703 S.E.2d 694 (punctuation omitted); see also Forsyth County, 303 Ga.App. at 630, 694 S.E.2d 102 (same).

(punctuation omitted)); MNM 5, Inc. v. Anderson/6438 Northeast Partners, Ltd., 215 Ga. App. 407, 410 (451 SE2d 788) (1994) (same); Stapleton v. Dismukes, 43 Ga. App. 611, 620 (c) (159 SE2d 768) (1931) (same) (quoting Berman v. Fraternities Health & Acc. Ass'n, 78 A. 462, 464 (Me. 1910)—the case from which this language originates). D. I. Corbett Electric, Inc. v. Venture Constr. Co., 140 Ga. App. 586, 588 (2) (231 SE2d 536) (1976) (punctuation omitted); see also Plumer v. Continental Cas. Co., 12 Ga. App. 594, 599 (77 SE 917) (1913) (same). Goldsmith, 307 Ga. App. at 28 (1) (punctuation omitted); see also Forsyth County, 303 Ga. App. at 630 (same).

See Derosa v. Shiah, 205 Ga. App. 106 ( 421 S.E.2d 718). Gainesville Asphalt further argues that evidence relied on to prove waiver must be so clearly indicative of an intent to relinquish a then-known right of benefit as to exclude any other reasonable explanation. D. I. Corbett Elec. v. Venture Constr. Co., 140 Ga. App. 586 ( 231 S.E.2d 536); see Jones v. Abel, 209 Ga. App. 889 ( 434 S.E.2d 822). However, these authorities merely prove that in the circumstances of this May 1991 contract, which is exhaustive on every point including giving Merritt a certain percentage of Gainesville Asphalt's recovery from the owner, if Gainesville Asphalt intended to assert any right to recoup $247,957.

"A provision in a contract may make payment by the owner a condition precedent to a subcontractor's right to payment if `the contract between the general contractor and the subcontractor should contain an express condition clearly showing that to be the intention of the parties.' [Cit.] The condition is clearly expressed in this subcontract." Sasser Co. v. Griffin, 133 Ga. App. 83, 86 (2) ( 210 S.E.2d 34) (1974); Jerome Distrib. v. B. L. I. Constr., 142 Ga. App. 776, 777 (1) ( 237 S.E.2d 13) (1977); D. I. Corbett Elec. v. Venture Constr., 140 Ga. App. 586, 587 (1) ( 231 S.E.2d 536) (1976); see Peacock Constr. v. West, 111 Ga. App. 604, 606 ( 142 S.E.2d 332) (1965). The contractor and surety were therefore entitled to a j.n.o.v., having made their motions for directed verdict on this ground.

[Cits.]" D. I. Corbett Electric, Inc. v. Venture Const. Co., 140 Ga. App. 586, 588 ( 231 S.E.2d 536). In view of the conflicting evidence presented on motion for summary judgment on this issue and the presumptions which lie on motion for summary judgment (see, e.g., Thompson v. Wilkins, 143 Ga. App. 739 (2) ( 240 S.E.2d 183)), we refuse to hold that as a matter of law any defenses defendants-guarantors may have had on the guaranty agreements were waived.

No reasonable construction of the evidence in the record would permit a conclusion of waiver on appellee's part, and the trial court did not err in granting summary judgment on the basis of appellant's failure to comply with the notice requirement. D. I. Corbett Electric, Inc. v. Venture Const. Co., 140 Ga. App. 586 (2) ( 231 S.E.2d 536) (1976); Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697 ( 172 S.E.2d 159) (1969); Styles v.American Home Ins. Co., 146 Ga. 92 ( 90 S.E. 718) (1916). Judgment affirmed.

Munford relies on statements in several Georgia decisions that "the evidence relied upon to prove a waiver must be so clearly indicative of an intent to relinquish a then known particular right or benefit as to exclude any other reasonable explanation." Citizens Southern Nat'l Bank v. Yeager Enterprises, Inc., 156 Ga. App. 341, 274 S.E.2d 730, 732 (1980), rev'd on other grounds, 247 Ga. 797, 279 S.E.2d 674 (1981); D.I. Corbett Electric, Inc. v. Venture Const. Co., 140 Ga. App. 586, 231 S.E.2d 536, 538 (1976). As put in some older cases,

Specifically, an assignee's conduct may result in the waiver of its rights under section 9-318. Cf. Estate of Haas v. Metro-Goldwyn-Mayer, Inc., 617 F.2d 1136, 1140-41 (5th Cir. 1980) (assignment invalidated by acquiescence in wrongful payment and failure to demand subsequent payments). Under Georgia law, waiver is a matter of intent: the evidence must so clearly indicate an intent to relinquish a known right as to exclude any other reasonable explanation. See, e.g., D.I. Corbett Electric, Inc. v. Venture Construction Company, 231 S.E.2d 536, 538 (Ga.App. 1976). Although waiver is generally a jury question, Jordan v. Flynt, 240 Ga. 359, 240 S.E.2d 858, 863 (1977), the district court was entitled to decide the legal issue on the cross-motions for summary judgment because the parties agreed on the necessary facts.

Georgia law provides that no payment is due a subcontractor where a subcontract was conditioned upon the receipt of payment by contractor from the owner. See Peacock Const. Co., 142 S.E.2d at 333 (holding a pay-when-paid clause to be a condition precedent); St. Paul Fire Marine Ins. Co. v. Georgia Interstate Elec. Co., 187 Ga. App. 579, 370 S.E.2d 829, 830-31 (1988) ("A provision in a contract may make payment by the owner a condition precedent to a subcontractor's right to payment if `the contract between the general contractor and the subcontractor should contain an express condition showing that to be the intention of the parties.' . . . The condition is clearly expressed in this subcontract.") (citing Sasser Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974); Jerome Distributors v. B.L.I. Constr. Co., 142 Ga. App. 776, 237 S.E.2d 13 (1977); D.I. Corbett Elec. v. Venture Constr., 140 Ga. App. 586, 231 S.E.2d 536 (1976)); Jerome Distributors, Inc., 142 Ga. App. 776, 237 S.E.2d 13 (1977) (affirming the finding that a subcontract clause requiring final payment within 30 days after completion of the work covered by the subcontract, "written acceptance by the architect, and full payment by owner" was a condition precedent to payment). Here, there was an express condition in the Subcontract similar to that in St. Paul Fire Marine Ins. Co.

Where the only evidence of an intention to waive is what a party does or forebears to do, the actions, or omissions to act relied on must be so manifestly consistent with a waiver of a right that no other reasonable explanation of this conduct is possible. Jones v. Roberts Marble Co., 90 Ga. App. 830, 832, 84 S.E.2d 469 (1954); D.I. Corbett Elec., Inc. v. Venture Constr. Co., 140 Ga. App. 586, 588, 231 S.E.2d 536 (1976). Plaintiff has cited the court no case, however, to indicate as plaintiff argues that such a situation requires a "clear and convincing" standard be applied by the court to this question in its charge to the jury or at this stage in the proceedings.