1. Code Ann. § 110-1208 providing that an order denying summary judgment shall not be subject to review has been superseded by Code Ann. § 6-701 (2) (Ga. L. 1965, p. 18) providing that appeals may be taken where the judgment complained of, if it had been rendered as claimed for by the appellant, would have been a final disposition of the cause or final as to some material party thereto. Undercofler v. Grantham Transfer Co., 222 Ga. 654 (151 SE2d 765). See also Parker v. Averett, 113 Ga. App. 576 (149 SE2d 199). An appeal from the denial of a summary judgment will now lie provided the grant of the motion in accordance with the contentions of the appellant would have been a final disposition of the case.
The first enumeration of error is as follows: “1. The court erred in sustaining the State Revenue Commissioner’s motion for summary judgment but including in the judgment thereon only the sales or use taxes due on those purchases or uses of tangible personal property concerning which there is no dispute.” The appellant did not enumerate error directly on the denial of summary judgment in his favor because, of course, the judgment was one granting a summary judgment and finally disposing of the case, but in an amount contended by the appellant to be less than that to which it was entitled. Since the instant judgment if rendered as *869claimed for by the appellant would have been a final disposition of the cause, the appeal is not subject to the motion to dismiss which has been interposed by the appellee.
2. Grantham appealed to the superior court from an assessment for taxes by the Revenue Commissioner under the Georgia Retailers’ and Consumers’ Sales and Use Tax Act (Ga. L. 1961, p. 360, as amended; Code Ann. Ch. 92-34A) which involved leases to common carriers of trucks and tractors under agreements providing that lessee should keep the equipment licensed for use with the appropriate state and federal regulatory bodies, insure them against public liability and property damage and cargo loss, and pay as rent a percentage of its revenue. Grantham undertook to furnish drivers selected, employed, paid and discharged by it, provide workmen’s compensation for such drivers, provide and pay for gas, oil, tires, license plates, and repairs, selecting the places where these are to be provided, direct the drivers with respect to safety, traffic and maintenace, pay all taxes and other fees, assume liability for the mishandling of any C.O.D. delivery, pay any fines resulting from trucks being operated above permissible weight limits, inspect, maintain and care for all equipment so furnished, and select routes to be used for the delivery of cargo from those over which the carrier is licensed to travel. The charges varied among the companies involved and, as to tractor-trailer combinations, ran between 52%% and 80% of the total revenues received.
On this state of facts the Commissioner made and Grantham opposed a motion for summary judgment. The court granted the motion as to a single undisputed item only and otherwise denied the motion.
A lease of tangible personal property is a sale within the meaning of the Sales and Use Tax Act. Code Ann. § 92-3403a (B); Oxford v. Blankenship, 106 Ga. App. 546 (127 SE2d 706). But the category does not include “personal service transactions which involve sales as inconsequential elements for which no separate charges are made nor services rendered by repair men for which a separate charge is made.” Code Ann. § 92-3403a (C) (2) (a). Where the transaction involves both personal services and the leasing of tangible personal property, Code Ann. § 92-3448a is applicable: “Any person who contracts ... to perform any service, and the *870principal part of that service is the furnishing of the machinery which will not be under the exclusive control of the contractor, shall be liable to collect a sales tax on the rental value of the machine so used, and if labor and other charges are not separated from the rental charge, the person so contracting shall be liable to collect a sales tax on the entire contract price.” For the defendant to be liable to collect the tax under this provision, there are two essential requirements that must be shown: first, that the principal part of the service is the furnishing of the machinery; second, that the machinery is not under the exclusive control of the contractor.
Some, but not all, of the leases specifically provide that “Carrier shall have exclusive possession, control and use of the motor vehicle involved when operated by or for such carrier.” Notwithstanding these contractual provisions as to who had exclusive control of the vehicles, the affidavits of both the lessor and the lessee recited that the care, custody and control of the machinery was in the lessor Grantham. These affidavits are evidence that, through course of dealing and acquiescing therein, there was a mutual departure from the terms of the contract. Long Tobacco Harvesting Co. v. Bramen, 98 Ga. App. 142, 149 (105 SE2d 390). A summary judgment may be granted only “where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442). In making this determination, the evidence is to be construed most favorably to the party opposing the motion, and he is to be given the benefit of all reasonable doubts and of all reasonable inferences from it.” Malcom v. Malcolm, 112 Ga. App. 151, 154 (144 SE2d 188); McCarty v. National Life &c. Ins. Co., 107 Ga. App. 178 (129 SE2d 408). Applying these rules to the instant record, as set out in the above statement of fact, the evidence was conflicting as regards both requisites of the statute. Code Ann. § 92-3448a, supra.
However, even assuming that furnishing the machinery or equipment was the “principal part” of the service supplied, still there remains a disputed issue as to whether the machinery was under the exclusive control of the lessor Grantham. Since the concurrence of both requirements is indispensable in order to constitute a taxable transaction within the purview of the *871statute, the evidence contained in the affidavits of the lessor and lessee presented a jury question.
Argued May 3, 1966 Decided December 20, 1966. Arthur K. Bolton, Attorney General, Louis F. McDonald, Assistant Attorney General, for appellant. Westmoreland & Patterson, Carl E. Westmoreland, Heard & Leverett, Robert M. Heard, for appellees.The trial judge did not err in denying the motion for summary judgment as to that issue.
Judgment affirmed.
Bell, P. J., and Hall, J., concur. Jordan and Eberhardt, JJ., concur in the judgment. Felton, C. J., Frankum, P. J., Pannell and Been, JJ., dissent.