Wood, J.,

(after stating the facts.) First. The appellee contended, and adduced evidence tending to show, that the indebtedness due appellant under the contracts was paid and the contracts discharged in this way, towit, it was agreed verbally between appellant and appellee that the debt should be paid by appellee turning over to appellant a team, a carload of lumber and a lot of shoes, which amounted in the aggregate to $776.23, which, taken from the debt of $787.66 due appellant, left a balance of $11.43 which appellee was to pay by lumber or check; that appellee performed the agreement on his part. It was contended by appellant, on the other hand, that appellee was to pay in addition to the above the sum of one hundred dollars ( which, appellant claimed, represented the profit that appellant would have realized had appellee shipped the lumber under the written contract), and ship an additional car of lumber at a specified price, and that appellee failed to perform his contract in the latter particulars only. On this phase of the case the appellant requested the following:

“(4y2). If you find from the evidence that after this contract was made the plaintiff agreed to accept a wagon and team and harness and some shoes on amount due plaintiff in consideration of defendant agreeing to pay the plaintiff one hundred dollars and selling him a car of lumber at $13.00 per M feet, and if you further find that plaintiff accepted the horses, wagon, harness and shoes, but that defendant failed and refused to pay the one hundred dollars and failed and refused to deliver the lumber, you are instructed that plaintiff has a right to treat this contract as broken and rely on the original contract.

(5%). If you find that plaintiff and defendant made the contract referred to in instruction 4J4, and that this supersedes the written contract, and that plaintiff did not treat this contract as broken and rely on the original contract, but instead relied on this latter contract, your measure of damages will be one hundred dollars and the difference between the agreed price on the car of lumber and its market value, if you find that defendant failed and refused to deliver the lumber and to pay the one hundred dollars.”

The court did not err in refusing to give these prayers. After appellant had accepted the team, shoes and lumber under the contract of settlement, even if its terms were according to his contention, he could not then repudiate same, and rely on the original contract. The question is ruled in principle by Whipple v. Baker, 85 Ark. 439, where we said, speaking of a contract for compromise and settlement of a disputed matter: “This partial performance by the defendant and acceptance of its benefits by the plaintiff placed it out of the power of the plaintiff to abandon the contract and sue for the original consideration, as he attempted to do in this case. He must resort to his action for damages on the contract, if any he has sustained, for the part not performed.”

Prayer 5 was inseparably connected in express terms with 4^4, and falls with it. In all other respects the rulings of the court on the issue raised by the complaint and answer were correct, and it could serve no useful purpose to discuss them. The verdict and judgment on this issue are correct.

Second. The question as to whether or not the penalty accruing under section 5402 of Kirby’s Digest could be set up by way of cross-complaint to an action for breach of contract was not raised in the court below, and we therefore express no opinion on that question here. But, treating the issue raised by the cross-complaint and answer thereto as the parties treated it on the trial, we find that there was no evidence to sustain the verdict.

The evidence shows that appellee notified appellant by letter November 6, 1907, to satisfy the record of the mortgage which appellee claims he had discharged. Appellee testified: “This is the time I asked him to satisfy the record.” Appellant, under the statute had 60 days, from the time it was requested, to satisfy the record. Section 5402, Kirby’s Digest. The record was satisfied by appellant in January, 1908. But the evidence does not show what time in January the record was satisfied. Dor aught the evidence shows to the contrary, the satisfaction may have been within sixty days from the time the request was made to satisfy. The burden of proof on this issue was on the appellee. The evidence therefore does not show any failure on the part of appellant to satisfy the record. The appellant, on the issue raised by the cross-complaint and answer thereto, asked, among other prayers, the following:

“(7). You are instructed that the defendant cannot recover on his cross-complaint.”

This prayer should have been granted.

Dor the errors indicated the judgment on the cross-complaint is reversed, and the cause as to this is dismissed.

Battue, J., not participating.