Davis v. Folmar.

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, 123 Ala. 615, 26 So. 518. It was there held that the contract of its own terms and force worked a forfeiture of same as one of purchase upon default in the payment of the notes, and required no affirmative action upon the part of the vendor declaring the same forfeited, and which is in this respect unlike the contract considered in the case of Zirkle v. Ball, 171 Ala. 571, 54 So. 1000. Indeed, counsel for appellant concedes that if the contract of January 11, 1917, is in force between the parties, the complainant is not entitled to relief unless there was a waiver of the forfeiture. That such a forfeiture could have been waived there can be no doubt; but as to whether or not it was waived is extremely doubtful, and the burden of showing same being upon the complainant the trial court found, and we think properly so, that he did not meet the burden. The respondent's proof shows that the receipt given for the year 1917 was "for rent," while the complainant contends that it was not for rent but was for interest, and he could easily have settled the question by producing the receipt. The testimony of Key Murphree is not necessarily in conflict with the respondent's theory and is reconcilable with the testimony of his witnesses as to the payment of rent.

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.