#### ALLEN BROTHERS v. RALEIGH SAVINGS BANK AND TRUST COMPANY, Executor of B. GRIMES COWPER, Deceased, et al.

(Filed 24 December, 1920.)

1. Waiver — Contracts — Writing — Expenditures for Improvements on Lands — Principal and Agent — Division of Profits.

Under a contract for the sale of lands for a present consideration paid by the sellers to the owner, with provision for an expenditure of a certain sum for improvement, to be increased on mutual agreement between the parties, in writing, the question of the waiver of the writer is one of personal privilege to be exercised by the owner, and to be shown as a matter of fact by the evidence, that he intended to relinquish this right by words or by acts calculated to induce the seller to believe that the owner had abandoned his right to require a written agreement as to such increased expenditure.

2. Same — Parol Agreements — Acts and Conduct — Consideration.

A contract for the sale of land, after expressing a present consideration to be paid the owner, provided for an expenditure of $20,000 for improvements before a distribution of profits between the owner and his selling agents, and such further sum for development of the lands if agreed upon in writing. A parol agreement was made as to a further and much larger expenditure for such improvements, to the total amount of $204,000, with the knowledge and acquiescence of the owner: SelA, a waiver by the owner of the requirement of a writing for the further expenditure, which must be paid before the distribution of the contemplated profits, allowing the owner to retain as a priority the sum of money paid him as the consideration for making the original contract of sale.

3. Same — Executors and Administrators — Personal Representatives.

The waiver by the owner of lands, requiring a consent in writing, for improvements on the land by his selling agents, beyond a certain sum specified in the contract, is binding upon his executor, or personal representatives, after his death.

Civil actioN, instituted in tbe superior Court of "Wake by Allen Brothers, a copartnership, composed of Daniel Allen, Frank Allen, and *609 W. Gr. Allen v. Tbe Ealeigb Savings Banks & Trust Company, executor of tbe estate of B. Gr. Cowper, and Mary G-rimes Cowper and Bryan Grimes Cowper, it being agreed by all parties that matters of law and fact might be determined by tbe court, tbe matters at issue were beard by Kerr, J., at chambers at Warrenton, North Carolina, on 14 November, 1920, and upon motion of tbe counsel for tbe plaintiffs, judgment herein filed, was signed by tbe court. From tbe action of tbe court in signing tbe judgment tendered by tbe plaintiffs tbe defendants appealed.

Tbe following is tbe judgment rendered:

This cause, coming on to be beard, and being beard by Honorable John H. Kerr, Judge, bolding tbe courts of tbe Seventh Judicial District, there being present Bryan Grimes Cowper and John H. Boushall, trust officer of Tbe Ealeigb Savings Bank & Trust Company, one of the defendants herein, representing tbe defendants to this action, and Albert L. Cox, counsel for tbe plaintiff, and Daniel Allen, of Allen Brothers, tbe plaintiff herein; and it appearing to tbe court and being found as a fact by tbe court that all parties to this action consent to all matters of law and fact being determined by tbe court, tbe parties hereto waived trial by jury, it is by tbe court found as a fact that B. G. Cowper and Allen Brothers bad consented and agreed together to change and amend sections 4, 8, 14, and 19 of tbe contract entered into on 12 August, 1919, by and between B. G. Cowper and Allen Brothers, so as-to eliminate from said contract any limit upon tbe funds to be expended in tbe development of tbe lands described in said contract, and that in lieu of tbe said limit of $20,000 prescribed in tbe said sections above recited, that such improvements should be made and such moneys expended in tbe development of said property as might be found necessary by tbe parties to said contract. And it is further found by tbe court as a fact that said sections 4, 8, 14, and 19 were eliminated by tbe said B. G. Cowper and Allen Brothers, in so far as they limited tbe expenditures of moneys for tbe development of tbe said land, and that by and with tbe consent of B. G. Cowper, $204,000 has been expended in improving and developing tbe lands of B. G. Cowper, described in said contract, and that said moneys were so expended under an agreement between tbe said B. G. Cowper and tbe said Allen Brothers, that tbe expenditures so made should be a charge- against tbe property, and should be paid before any distribution of profits was to be bad, as contemplated in accord with tbe terms of tbe contract. .

Tbe court finds further that B. G. Cowper is dead, and that under tbe terms of bis will tbe said Ealeigb Savings Bank & Trust Company has qualified and is acting as bis executor, and is empowered to carry out *610tbe provisions of said contract, above referred to, and that Mary Grimes Cowper and Bryan Grimes Oowper, its co-defendants, are the only heirs-at-law and devisees under the will of the said B. G. Cowper, deceased.

It is therefore ordered, adjudged, and decreed that the contract originally made between the plaintiff and B. G. Cowper be reformed, so as to eliminate therefrom the limitation of $20,000 on the costs of developments and improvements as shown in paragraphs Nos. 4, 8, 14, and 19 of said contract, and to permit settlement on the basis of the expenditures actually made and to be made in the development of the said lands referred to. (Signed) JohN H. Hebe,

Judge Holding Court Seventh Judicial District.

A. L. Cox for plaintiffs.

J ohn II. Boushall for defendants.

BROWN, J.

It appears from the findings of fact that on 12 August, 1919, B. G. Oowper and the plaintiffs, Allen Brothers, entered into a contract with reference to the development of property belonging to the said Oowper, known as Fairview Farm, a copy of which contract will appear as an exhibit attached to the complaint in this action.

In this contract it was provided that the limit of expenditures for the development of the property should be $20,000, unless a larger expenditure was approved in writing by both parties. During the lifetime of the said B. G. Cowper and subsequent to the execution of the contract, much more than $20,000 was spent in the development of the said property, this being done with the knowledge and consent of the said B. G. Cowper, as was found as a fact by the court below. The requirement that consent to the increase of the expenditures should be put in writing was not complied with, prior to the death of the said Cowper.

It was found as a fact by the court below that the increased expenditures were consented to by B. G. Oowper, and it was directed that the contract be reformed to such an extent as tci permit the consideration of the actual cost of expenditure for the improvements in the division of the proceeds of the sale of the property mentioned in the contract.

The written contract referred to contains the following clause: “That should owner, (Cowper) and seller, (Allen) decide that it would be advisable to make additional expenditures in the development of said property in excess of the $20,000 hereinbefore provided for, such additional development may be made upon mutual consent in writing and the additional cost of said development shall be taken care of in the same manner as is hereinbefore provided for discharging said $20,000.”

The only point presented by this appeal is as to whether there could be and was a waiver by the testator B. Grimes Cowper of the stipulation *611in the contract that consent to the increased expenditures for developing the property should be in writing.

We have no hesitation in holding that the stipulation could be waived and the judge of the Superior Court has found as a fact that the testator personally knew of and consented to the increased expenditures as being necessary for the proper development of the property. In law such conduct constituted a waiver and the testator would be estopped from after-wards objecting to the increased expenditures. The law would not allow him to perpetrate a fraud, and doubtless he would not have desired to do so.

To constitute a waiver it must appear that there was an intention to relinquish the right or there must be words or acts calculated to induce the plaintiffs to believe that the testator had abandoned his right to require a written agreement as to such expenditures.

Waiver is usually a matter of personal privilege and must be made by the person whose rights are affected. Waiver is a matter of fact to be shown by the evidence, 40 Cyc. 267; Parsons v. Lane, 97 Minn. 98.

The usual manner of waiving a right is by conduct or acts which indicate an intention to relinquish the right. The binding effect of a waiver is founded upon the doctrine of estoppel.

The court finds as a fact that “Sections 4, 8, 14, and 19 of the contract were eliminated by said B. G. Cowper and Allen Brothers, in so far as they limited the expenditures of moneys for the development of the said land, and that by and with the consent of B. G. Cowper $204,000 has been expended in improving and developing the lands of B. G. Cowper, described in said contract, and that said moneys were so expended under an agreement between the said B. G. Cowper and the said Allen Brothers, that the expenditures so made should be a charge against the property and should be paid before any distribution of profits was to be had.” This, of course, means that the $1,000 purchase price has priority.

No one will be permitted to take advantage of his own wrong. The testator consented to these greatly increased expenditures and the land received the benefit of them. His acts are binding on the executor and devisees and they must abide by them.

The judgment of the Superior Court is

Affirmed.