* Corpus Juris-Cyc. References: Compromise and Settlement, 12CJ, p. 321, n. 83. Appellant, as trustee in a mortgage executed by appellee to secure an indebtedness due by the latter to J.M. Ford, brought this action of replevin in the circuit court of Jasper county to recover from appellee the possession of certain personal property covered by the mortgage, for the purpose of foreclosure under the mortgage. There was a trial, resulting in a verdict and judgment for the appellee, from which judgment appellant prosecutes this appeal.
The sole question in the case is whether or not the mortgage indebtedness had been paid and the mortgage indebtedness thereby satisfied.
The mortgagee, J.M. Ford, was a merchant at Stringer, in this state. Appellee was a farmer, who, during the year 1923 bought his goods, wares, merchandise, and farm supplies from the mortgagee, Ford. On March 23, 1923, appellee and his wife executed a chattel mortgage to appellee, as trustee, to secure an indebtedness of three thousand one hundred dollars due by appellee to the mortgagee, Ford. The mortgage covered all crops to be raised by appellee during the year 1923, as well as other property, and provided that it should stand as security for any additional indebtedness appellee might incur to Ford during that year. At the end of the year, appellee was indebted to Ford in the sum of three thousand two hundred sixty-three dollars and nine cents, and had turned over to Ford, to be credited on the indebtedness, twenty bales of cotton, which were covered by the mortgage. In the early part of November, 1923, appellee *Page 862 insisted that Ford accept the twenty bales of cotton in full payment and satisfaction of the mortgage indebtedness. This Ford, at first, declined to do; but, a day or two after the proposition had been made by appellee and declined by Ford, the latter changed his mind, and on November 9, 1923, indorsed on appellee's note, "11/9/23, Credit in full," and sent the note and the mortgage securing the same to appellee in a letter written by him to appellee on that date. In this letter Ford stated that he had changed his mind and had decided to accept the appellee's proposition, and that he was inclosing in the letter appellee's note and mortgage, marked "Paid." Thereupon appellee wrote Ford repudiating the settlement, but did not return to Ford the note and mortgage. Thereafter, on January 5, 1924, Ford wrote appellee expressing surprise at the latter's failure to ratify the settlement. On January 10, 1924, appellee wrote Ford again, stating that there had been no settlement of the mortgage indebtedness between them. Appellee still retained the note and mortgage, saying nothing about their return to Ford. On February 28, 1924, Ford sent to appellee a written acknowledgment, to be signed by the latter, in which it was recited, in substance, that appellee had turned over to Ford twenty bales of cotton, covered by the mortgage, which appellee offered and Ford accepted in full satisfaction of the mortgage indebtedness. This written acknowledgment was not signed by appellee, however, until July 12, 1924. On that date, appellee signed it and returned it to Ford in a letter in which he stated to Ford that he had decided to make the settlement as proposed. But before signing the written acknowledgment of settlement, and on March 28, 1924, appellee had written Ford that he would not sign it. Ford never replied to appellee's letter of July 12, 1924, in which appellee returned to Ford, signed, the written acknowledgment of settlement, but retained the written acknowledgment of settlement. In fact, Ford gave appellee *Page 863 no notice whatever that he did not consider the mortgage indebtedness between them settled in accordance with the terms of the written acknowledgment inclosed by appellee in his letter to Ford of July 12, 1924, until August, 1925, when Ford had appellant, the trustee in the mortgage, bring this action of replevin to recover a part of the property covered by the mortgage. Ford had credited the twenty bales of cotton to appellee at a certain price, which left something over four hundred dollars due on the mortgage indebtedness.
Appellant contends that the court erred in refusing to direct a verdict in his favor on the undisputed facts. Appellant's position is that appellee waited too long to ratify the settlement proposed by Ford. It will be noted that the proposition by Ford to accept the twenty bales of cotton from appellee in settlement of the mortgage indebtedness was made on November 9, 1923, and was not accepted by the appellee until July 12, 1924. Appellant contends that at that late day appellee was not in a position to make the settlement binding between him and Ford by accepting the latter's proposition; that, under the law, a proposition of compromise and settlement made by one party must be accepted by the other party within a reasonable time after made; otherwise, it will be considered as withdrawn by the proposing party.
We agree with appellant that appellee's acceptance of Ford's proposition of settlement came too late to make such acceptance a binding contract between the parties, but we are of opinion that Ford, by his long silence thereafter waived the lateness of appellee's acceptance. Up to that time the matter of the compromise settlement between them was still open; they had been corresponding about it; their minds had never met, taking what the correspondence shows to be true. We think when Ford received appellee's letter of July 12, 1924, inclosing the written acknowledgment of settlement, signed by appellee, he (Ford) had the duty upon him, within a reasonable *Page 864 time thereafter, to either reject or ratify the proposed compromise settlement and notify the appellee to that effect. As stated, Ford failed to do this for something like ten months or a year, and when such notice was given it was, in the form of the action of replevin in this case.
Affirmed.