Opinion
6 Div. 782.
December 16, 1926.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
Theodore J. Lamar and W. A. Weaver, both of Birmingham, for appellant.
Appellant should have been permitted to amend her bill to meet the proof. Ex parte Northington, 37 Ala. 496, 79 Am. Dec. 67; Code 1923, § 6558. It does not appear from the answer and proof that the contract was canceled; but, if so, it was waived, and the contract was reinstated by the acts of the respondents. Hawkins v. Coston, 214 Ala. 135, 107 So. 50; France v. Ramsey, 214 Ala. 327, 107 So. 816.
Estes Smithson, of Bessemer, for appellees.
A party signing a written instrument, which he had opportunity to inspect and examine, but failed to do, will not usually be heard to complain of false representations as to its contents. Terry v. Mutual Life Ins. Co., 116 Ala. 242, 22 So. 532; Georgia Home Ins. Co. v. Warten, 113 Ala. 479, 22 So. 288, 59 Am. St. Rep. 129; Campbell v. Larmore, 84 Ala. 499, 4 So. 593; Jones v. C. S. M. R. Co., 89 Ala. 376, 8 So. 61; Pacific Guano Co. v. Anglin, 82 Ala. 492, 1 So. 852. The bill could not be amended to give it equity, and there was no error in not allowing the amendment. 11 A. E. Ency. Law (2d Ed.) 421; Bain v. Wells, 107 Ala. 562, 19 So. 774. Two years having elapsed from the date complainant canceled or forfeited her contract, her right to reinstate it was barred. Lovelace v. Hutchinson, 106 Ala. 417, 17 So. 623; Mortgage Co. v. Sewell, 92 Ala. 163, 9 So. 143, 13 L.R.A. 299; McCall's Case, 89 Ala. 488, 7 So. 770, 18 Am. St. Rep. 145; Thomas v. Jones, 84 Ala. 302, 4 So. 270.
The lease contract authorized the complainant to purchase the property upon the payment of all sums due thereunder, and obligated the respondent Mrs. Ellis Houston to execute to her a warranty deed. The trial court could have denied the relief sought only upon the theory that the lease had been canceled by mutual consent or that the complainant had waived or forfeited her right to purchase.
As to the cancellation, the admissions and conduct of the parties refute all idea of a mutual cancellation. Ellis Houston said the complainant offered to give up the property, but he declined to accept her offer, and his subsequent conduct shows that he continued to treat the lease as pending. His conduct also refutes a waiver or forfeiture, as he not only treated the lease as still existing, but sought and showed a willingness throughout to accept payment thereunder. Hawkins v. Coston, 214 Ala. 135, 107 So. 50; France v. Ramsey, 214 Ala. 327, 107 So. 816; Zirkle v. Ball, 171 Ala. 568, 54 So. 1000. The trial court erred in denying the complainant relief — that is, in not ordering an accounting and permitting the complainant to purchase the property under the terms of the lease.
As to whether or not the complainant should have been permitted to amend the bill before final decree, we need not determine, as the cause must be reversed and remanded for other reasons, and the bill can then be amended upon such reasonable terms as the trial court may impose.
The decree of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.