Opinion
5 Div. 883.
May 15, 1924. Rehearing Denied June 19, 1924.
Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.
Jas. W. Strother, of Dadeville, for appellant.
Contracts, until completely executed, or even after compliance with their terms, are open to change and modification, by mutual agreement, and such modifications require no other consideration to uphold them than the mutual agreement of the parties. Hembree v. Glover, 93 Ala. 622, 8 So. 660; Coleman v. Siler, 74 Ala. 435; Dickey v. Vaughn, 198 Ala. 283, 73 So. 507; Dunaway v. Roden, 14 Ala. App. 501, 71 So. 70; Id., 196 Ala. 701, 72 So. 1019; 2 Mayfield's Dig. 197. Whatever a person may do in the first instance he may ratify after it is done, and this may be effected by his actions and conduct as well as by an express ratification. Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 12 L.R.A. 140, 24 Am. St. Rep. 832; Wynn v. Tallapoosa Co. Bank, 168 Ala. 469, 53 So. 228; Sanders v. Bagwell, 37 S.C. 145, 15 S.E. 714, 16 S.E. 770; Janes v. Brewing Co. (Tex.Civ.App.) 44 S.W. 896.
Geo. C. Douville and G. J. Sorrell, both of Dadeville, for appellees.
Fraud includes all omissions or concealments which involve a breach or lack of equitable duty. Kennedy's Heirs v. Kennedy's Heirs, 2 Ala. 571; Morgan v. Gaiter, 202 Ala. 492, 80 So. 876; Bozeman v. Colt Co., 19 Ala. App. 126, 95 So. 588; Adams Hdw. Co. v. Wimbish, 201 Ala. 548, 78 So. 902; Comm. Co. v. Cooper Bros., 196 Ala. 285, 71 So. 684.
It is agreed that the original contract conveyed only the oak timber upon the land, but the respondent contends that when the extension of time was granted on November 28th for removing the timber the word "oak" was removed or stricken from the conveyance by mutual consent, and so stricken the instrument would operate to convey all timber upon the land instead of the "oak" only, as originally conveyed. The complainants contend that the word "oak" was not stricken by them or by any one else with their knowledge or consent and that nothing was said about the other timber when the time extension agreement was signed. We have carefully considered the evidence and are of the opinion that the weight of same, taking into consideration the surrounding circumstances and details, supports the conclusion of the trial court that the erasure of the word "oak" was not made by the complainants and that the original was not so authoritatively changed as to convey any timber other than the "oak." The trial court, therefore, properly held that the complainants were entitled to relief, but should have more properly ordered the reassertion of the word oak in the conveyance and the record of same and enjoined the respondent from removing any timber from the land other than the oak instead of canceling the conveyance entirely and enjoining a removal of any of the timber. The original document was an executed conveyance of the oak timber and the unauthorized alteration, even if made by the grantee, did not divest the title originally granted by the instrument, and, though altered, it continued as a memorial of the conveyance and as evidence to prove the existence of title in the grantee as originally conveyed. Ala. State Land Co. v. Thompson, 104 Ala. 570, 16 So. 440, 53 Am. St. Rep. 80. It appears that under the extension the respondent had 10 months, or, more accurately speaking, 9 months and 28 days, within which to cut and remove the oak timber, when the injunction was issued, and the decree of the circuit court is corrected so as to correct conveyance and record as above indicated and the injunction is modified so as to exclude from the operation of same the oak timber of the size limit as conveyed by the original instrument and the respondent is given 9 months and 28 days from the rendition of this judgment within which to cut and remove said oak timber.
The decree of the circuit court is corrected and modified, as above indicated, and affirmed.
Corrected and affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.