concurring.
I concur in the per curiam opinion and wish to add only a few brief yet I believe pertinent comments.
The attorney as well as the insured was named payee and signed the draft in settlement of the claim. Upon receiving the unfiled notice of dismissal and demand that it pay costs, the insurance company did not merely go into default. It wrote the attorney on December 13,1973, and again insisted that costs be paid and the suit be dismissed.
The default judgment was not entered automatically. A jury trial was held on January 21, 1974, and a verdict was entered for $500 damages, $1,480 penalty for bad faith refusal to pay plaintiffs claim, and $1,250 attorney fees. The record is silent as to who testified before the jury as to the insurance company’s alleged bad faith in refusing to pay the claim or as to the attorney fees. In any event execution issued on the judgment and the insured’s attorney requested forms from the State Insurance Commissioner’s office to enable him to levy on the insurance company’s bond.
When the payees signed the draft and got the money it represented, they accepted the terms of the offer which accompanied it notwithstanding their demand that the insurance company file the notice of dismissal and pay costs. Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196) (1952); Anderson v. Shelby Mut. Ins. Co., 237 Ga. 687 (229 *494SE2d 462) (1976). Action (taking the money) speaks louder than words (adding a demand).
The fraud unmixed with negligence which justified the setting aside of the judgment was the taking of the jury verdict on January 21, 1974, for bad faith penalty, attorney fees, and damages in excess of the sum agreed upon as damages.