concurring specially.
Although I agree that APAC-Southeast is entitled to the judgment awarded by the trial court, I do not agree2 with the majority’s reasoning.
As the name implies, the “anticipatory repudiation” of a contract occurs when one party thereto repudiates his contractual obligation to perform prior to the time such performance is required under the terms of the contract. While technically such a repudiation is not a breach of contract, the contractual time for performance not having arrived, the law recognizes that under certain circumstances the innocent party to the contract may treat such an anticipatory repudiation as a breach thereof. Thus when one party to a bilateral contract of mutual dependent promises absolutely refuses to perform and repudiates the contract prior to the time of his performance, the innocent party is at liberty to consider himself absolved from any future performance on his part and has an election of several possible remedies, including the right to rescind the *660contract altogether and recover the value of any performance he has already rendered.Decided January 14, 2010 Reconsideration denied March 8, 2010 Thompson, Slagle & Hannan, Jefferson B. Slagle, McRae, Stegall, Peek, Harman, Smith & Mannin, Michael D. McRae, Robert T. Monroe, for appellants. Toler & Hanrahan, Timothy N. Toler, Mark V. Hanrahan, for appellee.
CCE Fed. Credit Union v. Chesser, 150 Ga. App. 328, 330 (1) (258 SE2d 2) (1979). This is true whether the contract is wholly executory or has been partially executed. Shell Petroleum Corp. v. Jackson, 47 Ga. App. 667, 670 (171 SE 171) (1933).
A repudiation of the contract, however, is not self executing. The injured party must elect its remedies. Here, Albea did nothing: It did not seek rescission, did not sue for damages, and did not demand that APAC perform. Instead, although not formally giving its approval to the assignment, it treated APAC’s assignee, C.W. Matthews, as a party to the contract by accepting the asphalt provided by C.W Matthews and by ultimately reaching a new agreement with C.W Matthews. Moreover, Albea has never denied that it owes APAC the amount APAC claims. Under the circumstances, Albea waived its formal approval of the assignment and is estopped from denying the assignment. Breus v. McGriff, 202 Ga. App. 216 (413 SE2d 538) (1991); Merchants Grocery Co. v. Shawnee Milling Co., 86 Ga. App. 848, 852 (72 SE2d 797) (1952). See Splish Splash Waterslides v. Cherokee Ins. Co., 167 Ga. App. 589, 593 (4) (c) (307 SE2d 107) (1983) (“ ‘Where a landlord treats a lease as assigned, even though the original lessee had no right to assign it without his consent, he is estopped from setting up (as a defense) that the assignment of his contract is made without his consent.’ [Cit.]”) (citation and punctuation omitted).
Accordingly, even though I do not concur fully with the majority opinion, I concur with its judgment affirming the trial court.
Because I do not agree with all that is said, this opinion is physical precedent only. Court of Appeals Rule 33 (a).