1. Division 4b of Flewellen holds that, "`A receipt marked (paid) in full for all claims arising under an insurance policy may not be pleaded as an accord and satisfaction in full, where it further appears that the sum actually paid was an amount which the company had already admitted owing and stood ready to pay in discharge of provisions of the contract other than those which are the basis of the recovery sought.' Matthews [v. Gulf Life Ins. Co., 64 Ga. App. 112 (1) ( 12 S.E.2d 202) (1940)]. Additionally, it has been held that `Where a party receives no more than the amount legally owed and where at that time there is no dispute existing between the parties, then the absence of any additional consideration (such as settlement of a disputed account), causes the purported release to fail, it being a nudum pactum.' Stamsen v. Barrett, 135 Ga. App. 156, 159 ( 217 S.E.2d 320) (1975)." 250 Ga., supra at pp. 715-716.
Additionally, it has been held that "Where a party receives no more than the amount legally owed and where at that time there is no dispute existing between the parties, then the absence of any additional consideration [such as settlement of a disputed account], causes the purported release to fail, it being a nudum pactum." Stamsen v. Barrett, 135 Ga. App. 156, 159 ( 217 S.E.2d 320) (1975). This is not a case where an insurer has made a payment in settlement of a dispute as to the entitlement of the injured party to recover nor was there a dispute as to how much of a recovery was warranted.
In addressing defendant's defense of accord and satisfaction, the superior court relied upon contractual language in the lease requiring defendant to return the vehicle to plaintiff in the event of early termination of the lease or default and concluded that since "defendant was already obligated to surrender the vehicle ..." that the alleged accord and satisfaction was not supported by consideration. See Stamsen v. Barrett, 135 Ga. App. 156 ( 217 S.E.2d 320). However, this evaluation is flawed by the absence of any evidence that defendant was under an obligation to return the vehicle prior to the alleged oral agreement with plaintiff's representative.
[Cits.]" Stamsen v. Barrett, 135 Ga. App. 156, 159 (1) ( 217 S.E.2d 320) (1975). This is not the situation here.
As a pre-existing legal right of appellant, the rebate could not constitute a new consideration for the release or discharge of the lien. Stamsen v. Barrett, 135 Ga. App. 156 ( 217 S.E.2d 320) (1975). The uncontroverted evidence shows that the release by appellant of its first lien on the truck was for only the limited purpose of accommodating and assisting Mrs. Parsons in her efforts to obtain a Georgia tag and title.
We thus agree with plaintiff's contention that it was the understanding of all concerned parties that the release affected her claim for property damage only and not her action for personal injuries. See Stamsen v. Barrett, 135 Ga. App. 156, 217 S.E.2d 320; Hatcher v. Harleysville Mutual Insurance Co., ___ So. C. ___, 225 S.E.2d 181. For the foregoing reasons the order of the circuit court of Montgomery County dismissing plaintiff's complaint is reversed.