Appellee, Earl Butler, d/b/a Lakeshore Exxon, operated a service station in Gainesville, Georgia, and received his supplies, including fuel, from appellant, Exxon Corporation. As part of the operation, Butler accepted Exxon credit cards, the use of which was governed by a contract and credit card manual. Those documents stated, inter alia, that charge tickets must be filled out completely and that failure to do so could result in the purchases being charged back to the dealer.
Butler began accepting charges on the credit card of Ellen Silver-stone in October 1979 and continued to honor the card until June 9, 1980, when he was notified by Exxon that he should no longer honor the card because it was stolen. Exxon was notified of the credit card theft in October 1979, but intentionally chose not to notify the dealer while it conducted an investigation. Exxon continued to make partial payments to the dealer during the time it knew the card was stolen, but it failed to notify the dealer, as it had done in the past with other credit cards, so that further loss could be prevented. Butler testified that he regularly sent in incomplete charge tickets and that it was the company’s practice to notify him within two weeks or 30 days of stolen cards or improper charge tickets. Since no notice was given, he continued to accept the card. On June 9, 1980, some nine months later, Exxon notified Butler for the first time that the purchases made on the Silverstone card would be charged back to him due to his failure to completely fill out the charge slips by including quantity purchased, tag number, product, etc.
Butler brought suit against Exxon to prevent the charge-back and to recover the amount unpaid on the credit card. A non-jury trial was held in the Superior Court of Fulton County and judgment was rendered in favor of Butler.
The trial court expressly based its judgment on the theory of mutual departure. “ ‘Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact terms of the agreement. Until such notice, the departure is a quasi new agreement.’ ” Few v. Automobile Financing, Inc., 101 Ga. App. 783, 784 (115 SE2d 196) (1960). See also OCGA § 13-4-4.
Since the case was tried before the court without a jury, the judge was trier of both law and fact. Southern Feed Stores v. Sanders, 193 Ga. 884, 887 (20 SE2d 413) (1942); OCGA § 9-11-52. “In a bench trial ‘the trial judge sits as trier of fact, and his findings are analogous to *147the verdict of a jury and should not be disturbed if there is any evidence to support them.’ [Cit.]” Nat. Carloading Corp. v. Security Van Lines, 164 Ga. App. 850 (4) (297 SE2d 740) (1982). “[W]e do not, on appeal, blindly accept the evidence of the plaintiff or that of the defendant or determine the merits of the case from a point of advocacy. Rather, we follow the rule that where the trial court finds the facts and enters judgment thereon, the sole question for determination is whether there is any evidence to authorize that judgment. It is our duty to construe the evidence to uphold the judgment rather than upsetting it. [Cits.] ... In fact with reference to actions in an appropriate trial forum tried upon the facts without a jury, it has been held consistently that even though the findings of fact and conclusions of law contended for by the appellant would have been authorized by the evidence presented on the trial, yet, where the facts found by the trial court were authorized by the evidence, such findings will not be set aside. [Cit.] In the absence of legal error ... an appellate court is without jurisdiction to interfere with the judgment supported by some evidence even where the judgment may be against the preponderance of the evidence. [Cit.]” All-Phase Elec. &c. Co. v. Transamerica Ins. Co., 162 Ga. App. 104, 105 (290 SE2d 208) (1982).
Decided December 4, 1984 Rehearing denied December 20, 1984 Earle B. May, Jr., G. Conley Ingram, for appellant. Danny J. Lovell, for appellee.Applying the rule of waiver as set out in Crawford v. First Nat. Bank of Rome, 137 Ga. App. 294, 295 (223 SE2d 488) (1966), that “provisions of a written contract may be waived by acts or conduct,” the evidence clearly permitted the trial court to find that the conduct of the defendant in delaying for over nine months in notifying the plaintiff that the credit card had been stolen; in benefiting from the continued sale of its products by the dealer; and in continuing to pay the dealer constituted a waiver of the contractual provision. “There being evidence to support the findings of the trial court, the judgment must be affirmed.” Parr v. Jones, 163 Ga. App. 597, 598 (295 SE2d 570) (1982).
Judgment affirmed.
McMurray, C. J., Deen, P. J., Banke, P. J., Birdsong, P. J., Carley, Sognier, and Beasley, JJ., concur. Pope, J., dissents.