In December, 1925, O.E. Tussing borrowed $2,400.00 from The Dade County Security Company and executed his note and mortgage to evidence and secure the loan. In April, 1926, the mortgagor secured a second loan of $500.00 from the mortgagee and executed his note *Page 582 and a second mortgage on the same lands as those described in the first mortgage to evidence and secure the loan.
Both mortgages and notes were due eight years after date and bore interest at six per cent. per annum, interest, dues, and premium payable monthly. Interest, premiums, and dues were paid on notes for several years. Storms in 1926, 1927, and 1928, damaged the property covered by the mortgage severely, and the collapse in real estate values further depreciated its value. In this dilemma the mortgagor went to the mortgagee and proposed to convey it the property in settlement of its notes and mortgages.
The mortgagee declined to take the property in settlement of the notes, but admitted that it was not then worth the loan, agreed to have it appraised at its present value, and requested the mortgagor to come back later. It was in fact appraised at $750.00 and the mortgagee proposed to the mortgagor that he take it at this value, put the houses on the property in livable condition, pay taxes and insurance, and liquidate the $750.00 with the rents from the houses as they came due. This proposition was accepted by the mortgagor, who took charge of the property for the purpose of the new contract and spent about $300.00 repairing the houses to make them suitable to rent.
At the time the new contract was made the mortgagee had gone into the hands of a receiver in whose name the new contract was made and whose successor is appellee here. The appellee advised the mortgagor at the time that the new contract would have to be approved by the Comptroller and the Circuit Court, but assured him that it would see to this being done.
The new agreement was oral and was made in September, 1930. The mortgagor paid the interest, the taxes for 1931, and made regular monthly payments on the principal with *Page 583 rents collected for about two years, amounting to approximately $291.87. He then proposed to secure money and liquidate the balance due. The mortgagee, who was now the receiver, refused to permit this to be done except on the basis of a new appraisal which was made and was $1,500.00. This proposition was declined by the mortgagor, no further payments were made, and appellee as complainant below in June, 1933, filed his bill of complaint to foreclose the original mortgages. An answer was filed setting up the new contract and offering to go through with it, testimony was taken, and on final hearing judgment was entered for the complainant on the basis of the original agreements. This appeal is from the final decree.
In the first consideration of this case we affirmed the decree below on the theory that the agreement relied on by Tussing was oral, that no consideration passed for it, that Frank A. Chase, who represented the mortgagee receiver, was without authority to make it, and that it was at no time approved by the Comptroller or the Circuit Court.
On reconsideration and reargument we have decided that this conclusion was erroneous. In making the oral agreement Chase was represented as having authority to make it. He was assistant to the liquidator and advised Tussing that he would have it approved by the Comptroller and the Circuit Court. Tussing, relying on this agreement, took charge of the premises, spent $300.00 for betterments to the houses, and made payment on the property regularly for about two years. This was ample to meet every legal requirement in the matter of consideration.
It is settled under the rule of this Court that a written agreement cannot be abrogated or modified by an executory or parol agreement, but this rule does not apply if the parol agreement has been accepted and acted on by both parties *Page 584
as was the case here. Moses v. Woodward,
Aside from the new contract the Comptroller was authorized by Section 4162, Revised General Statutes of 1920, Section 6102, Compiled General Laws of 1927, upon order of the court to sell or compound all bad or doubtful debts. Under the facts as detailed herein the appellee is estopped to raise the question of consideration, the question of authority, or the question of approval of the new agreement. The uncontradicted evidence is that the agreement was made and lived up to by both parties for two years. The record discloses the existence of other evidence that would add materially to the determination of the issues.
We, therefore, conclude that our former opinion should be rescinded and the judgment reversed on rehearing for further proceedings consistent with this opinion.
Reversed on rehearing.
WHITFIELD, C.J., and ELLIS and DAVIS, J.J., concur.
BUFORD, J., dissents.
