dissenting.
On September 25,1973, counsel for D. R. Rick, wrote a letter to Capital Automobile Company and therein stated that Capital owed Rick $700.73, and unless payment was made by October 6,1973, suit would be filed. Considerable elaboration and detail were set forth in the letter to explain how the above figure was computed. On October 1, 1973, counsel for Capital Automobile Company mailed its check to Rick’s attorney for the $700.73 demanded, but Rick’s counsel returned the check on October 4, 1973, not on the ground that cash was insisted upon, but because of the contention that Rick’s attorney had made a mistake in demanding only $700.73, and contended that Capital actually owed other expenses which Rick had incurred, and of which Rick’s attorney was not aware at the time of writing the demand letter for $700.73. The correct amount claimed to be due was not set forth in the letter of October 4, but it was suggested that Capital contact Rick’s lawyer if it desired to settle with Rick.
Thereafter Rick sued Capital for $738.16 special damages and $10,000 punitive damages. Capital answered and denied indebtedness, and inter alia, pleaded full settlement by reason of payment of the sum demanded.
While Rick’s lawyer has not set forth how much additional money he contended was owed by Capital, when the check was returned on October 4th, it appeared when his complaint was filed that instead of $700.73, Rick was contending that approximately $38 additional was owed.
1. Capital’s plea of settlement was a plea of accord and satisfaction. Code § 20-1201 provides: "Accord and *834satisfaction is where the parties, by a subsequent agreement, have satisfied the former one, and the latter agreement has been executed...” In other words, Capital contends that irrespective of whether it owed $738.16 or $700.73, when Rick’s lawyer demanded the latter figure, and said unless it was paid promptly suit would be filed, Capital had the right to and did promptly act upon that statement, and mailed his check for the amount demanded, to wit, $700.73.
2. While Capital did not pay by cash, the failure of Rick to insist upon a different form of payment than check waived any right he might have had to insist upon a payment in cash. Code § 20-1105; White v. Turbidy, 227 Ga. 825, 827 (5) (183 SE2d 363).
3. This case seems to be governed in Capital’s favor by Code § 20-1204, which is as follows: "An agreement by a creditor to receive less than the amount of his debt cannot be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.” (Emphasis supplied.) This statute, conversely, is stating that accord and satisfaction can be pleaded where the money is paid after the creditor agrees to receive less than the amount of his debt.
Rick agreed to receive less than the amount he now contends was actually due, and Capital acted on the agreement, and paid that amount within the time demanded, by check. Rick’s failure to cash the check does not alter the situation.
I therefore respectfully dissent from the opinion by the majority in this case.
I am authorized to state that Presiding Judge Pannell and Judge Marshall join in this dissent.