dissenting:
In the hearing plaintiff admitted that after a settlement agreement on 23 June 1977 the claims agent for defendants’ insurer mailed to plaintiff a transmittal letter with a “Full and Final Release of All Claims” and a draft in the amount agreed. The draft was endorsed by plaintiff, deposited in her checking account, and cleared on 30 June 1977. Plaintiff failed to sign the release and return it to the agent and thereby breached the settlement agreement.
The draft was not an advance or a partial payment, and in my opinion G.S. 1-540.3 does not apply. Under these circumstances the trial court had the authority to order that the plaintiff make a reimbursement even though the court recognized that a material issue of fact was raised as to whether subsequently plaintiff was told by the agent that she could retain the money. I vote to affirm the dismissal.