We reverse the grant and affirm the denial. 1. Appellant claims that the trial court should not have granted appellee's motion for summary judgment because a genuine issue of fact existed whether the three-day written notice provision was material to the contract. He also contends that the trial court should have granted appellant's summary judgment motion because appellant had substantially performed his obligations under the contract with regard to notice. We disagree with both arguments. Appellant drafted the contract and specifically added the three-day notice provision. We will not and he cannot deny its materiality simply because he failed to meet its requirement. "[C]ourts are not at liberty to revise contracts while professing to construe them. [Cits.]" Brigadier Indus. v. Pippin, 148 Ga. App. 145, 146 ( 251 SE2d 114) (1978). The trial court was correct in stating that appellant breached the contract by failing to give the required notice, since it was uncontradicted that appellant gave only one day's written notice of each proposed closing date. 2. However, the trial court did err in holding that there was no genuine issue of material fact and in granting summary judgment to appellee. Our review of the record reveals that appellee knew appellant had breached the notice requirement when appellee notified him by telephone on June 22 that appellee would not go through with the closing. According to appellee's attorney's affidavit, appellee's original stated reason for refusing to close was that he thought the contract required closing to occur on or before May 24. However, an affidavit given by appellant's attorney, the other party to the phone call, merely states that appellee claimed a breach of contract excused him from closing the sale. The subsequent written correspondence summarized the conversation using the same broad language. It appears that the first time appellee specifically raised the breach of notice issue was after suit was filed against him. Since it is not clear from the evidence whether or not appellee, by his conduct, waived his right to object to appellant's breach, summary judgment in appellee's favor was inappropriate. Royal Atlanta Dev. Corp. v. M. D. Hodges Enterprises, 141 Ga. App. 838 (234 SE2d 676) (1977). See also Fenn v. Ware, 100 Ga. 563 (28 SE 238) (1897). Because an issue of fact exists, appellant's third enumeration of error, in which he contends that as a matter of law appellee waived objection to the breach, has no merit. Bruce E. Pashley, for appellee. |