83 So. 60 | Ala. | 1919
We agree with the trial court that the contract dated January 11, 1917, was executed as of the day it bears date, and was not a mere duplicate or copy of the contract of 1915 with a subsequent unauthorized change in the date. Moreover, the opinion of the trial court discloses a personal examination of the original paper, and the absence of any signs indicating a change of same as to date, and which said original is not before this court, therefore giving the trial court an advantage in determining this question.
The contract in question is practically the same in form as the one considered and construed in the case of Nelson v. Sanders,
While we have treated this case upon the same theory as did the trial court and as argued by counsel, we might concede the contention of appellant as to the new contract of 1917, as it would not necessarily change the result; for, if respondent waived the forfeiture for the year 1916 or any previous years, that did not operate as a waiver for all time, and the forfeiture clause would be effectual as to succeeding defaults, and, if a default was made for the year 1917 and the respondent did not waive same and stood upon his rights under the contract by receiving the rent and treating it as such, the forfeiture as for that year was not waived although it may have been waived on previous annual payments. Nelson v. Sanders, supra.
The judgment of the circuit court is affirmed.
Affirmed.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur. *338