¶1concurring specially.
¶2I concur fully in the judgment reversing the grant of summary judgment in this case. I also agree with all that is said in Divisions 1 and 2 of the opinion. I further endorse the ruling of Division 3. However, I am not convinced of the applicability of the statutory provisions relied upon by the majority nor am I certain that the failure to answer the letter constitutes “a justifiable inference that the tender, if carried out in all formality, would still be rejected” so that, under the cases cited, a formál tender is unnecessary. However, I do agree with the majority that the defendant’s failure to reply to plaintiffs letter is crucial because “if the party to whom tender is to be made should obstruct or prevent a tender, [there is] no reason why in that event tender should not be held to have been waived. It would be unfair for the first party to a contract to purposely avoid and prevent the performance of a contract by the other party.” Blount v. Lynch, 24 Ga. App. 217, 221 (100 SE 644) (1919). Thus, while I do not believe that the failure to answer this particular letter could be construed as an admission or as an indication that the ultimate tender proposed would be refused, I do believe that the defendant’s failure to respond in any way could be found to be an attempt to obstruct or prevent the tender. Therefore, it is clear that summary judgment was improperly granted in this case.