The order of submission to arbitration in this case was to two named persons, • “they to call in a third man, whose award, when made according to law, to be made the judgment of the court.” No third man was called in, but the two named arbitrators had the parties and their witnesses before them, heard the cause, and rendered their award. No objection was raised on the trial to the failure to call in the third arbitrator. Proceeding to trial before the two without objection, was a waiver of the right to have the third man called in. — Chapman v. Ewing, 78 Ala. 403.
The circumstances shown in the evidence tend very strongly to show that Davis, the proprietor, by moving into the house, did not admit it had been completed according to contract. We make this statement independent of the letters written by Davis; for his testimony, that he moved in before the contractors ceased to work upon the house, does not appear to have been controverted. His own letters, or declarations, however, unless written or spoken contemporaneously with the act of. moving into the house, were not legal evidence he could introduce, for the purpose of rebutting or explaining any legitimate inference that could be drawn from the simple act of moving in. — 1 Brick. Digest 843, §§ 553, 555, 557.
• There is another rule applicable to the correspondence found in this record. Either party to a litigation may give in evidence the admissions or declarations of the opposite party, oral or written, if pertinent to the issue; and when necessary to their proper understanding, may, in case of oral admissions, prove the question or statement, if any, which called them out; or, in case the communication is in writing, may introduce in proof the letter which called out the reply.
Many of the letters found in this record were not admissible under any of the rules stated, above. But the objection was to all the letters indiscriminately, and as made, the arbitrators did not err in overruling it. — 3 Brick. Dig. 443, § 570.
The most important question in this case arises under the sixth article of the written contract. That contract was entered into and signed by both parties before the work was begun. The sixth article, or provision of the contract, stipulates that “no new work done on the premises shall be considered as extra, unless a separate estimate in writing for the same, before its commencement, shall have been submitted by the contractor to the proprietor, and his *373signature obtained thereto.” A plan and specifications for the dwelling, prepared by an architect, formed the basis of the contract, and the agreement was to build in accordance therewith. The testimony tends strongly to show that, pending the construction, several alterations were agreed on between the parties, but not in writing. These alterations consisted of a change in the plan of the house, by omitting some things embraced in the specifications, and substituting others, and, in some instances, by supplying better and more costly materials in the place of inferior ones. "We do not understand there is any denial that this oral agreement was made, and that the plan of the house was altered accordingly. This change involved, as we have said, the omission of certain parts included in the architect’s plans, and replacing them with something else. The plaintiffs below — appellants here — claim that these changes worked a difference in the value of the materials and workmanship as furnished and done, of near one hundred dollars, above the work and materials for which they were substituted. And acting on the assumed binding effect of the agreed alterations, they prepared and presented their claim, in which they charged the proprietor with the materials and labor which they claim in excess of the architect’s specifications, and credited him with such as were omitted in consequence of the change. The sum of the extras claimed is one hundred and sixty dollars, while the omissions credited foot up about sixty-four dollars, as we understand the figures. They claimed in the suit five hundred and sixty dollars, which would be the amount due them, if their postulates are correct. That is, if the alterations, as claimed, were agreed on; if the agreement was and is legally binding; if the alterations or substitutions were in fact made, and were of the increased value claimed; if the credits allowed be all to which defendant is entitled, and if the building was completed according to the contract as modified; then, it would seem, the plaintiffs were entitled to recover the sum demanded,
It is scarcely necessary to state, that if the substituted materials and workmanship were disallowed, because the agreed change was not reduced to writing and signed, the defendant should not have been allowed a credit for the items which were omitted pursuant to that agreement. To do so, would relieve him of payment, not only for the substituted parts, which we must consider were more desirable, but also from all liability for the omitted parts, which were rendered *374useless by tbe work done under tbe terms of tbe plan, as agreed to be changed. Such a principle, carried to its utmost possibilities, might enable a proprietor to obtain gratuitously materials and workmanship for a completed dwelling, no matter how costly. But we have no means of ascertaining the principles on which the award was made up, farther than the expressed rulings of the arbitrators inform us. It may be, that they struck out the credits for the work omitted, and allowed to the contractors, for the work done in its stead, the same compensation they would have been entitled to, if the work had been done according to the plans and specifications of the architect. If they did so, their disallowance extended to the utmost limit which the provision of the written contract as to extras permitted. Until the claim of the contractors exceeded three thousand dollars, the price specified in the written contract, no change, either in materials or workmanship, could be classed as extra. The most that could be made of it would be, that, if done without Davis’ consent, it would be a breach of their written contract to build according to the plans and specifications furnished. The clause against extras was inserted to regulate the manner of changing the plan agreed on, whenever such change involved an increase of compensation to the contractors. Till that limit is proposed to be transcended, clause six has no field of operation.
Tbe testimony shows that, after the written contract was executed, alterations, both in the materials and workmanship, were orally agreed on between the proprietor and the contractors,' and that such agreement was carried out in the construction of the dwelling. There is no conflict in the testimony, to this extent. As we have already shown, the work done pursuant to this agreement, if sufficiently done, must be accepted and treated as a compliance with the provisions of the written contract which it supplanted. If the substituted work exceeded in value the work omitted, then such excess must be classed as extra, to be considered further on. But the harmonious testimony goes no further than to show there was an agreement to change the plans and specifications in the particulars claimed.
The plaintiffs each testified that, in making the agreement of change, the defendant promised to pay for the increased value of materials and workmanship resulting from the change. The defendant, in his testimony, denied making *375such promise. This presented an issue of fact for the arbitrators to pass on.
The bill of exceptions sets forth, that defendant moved before the arbitrators to exclude from their consideration all evidence of the alleged work done under the oral agreement, and defendant’s promises and instructions in relation thereto; which motion the arbitrators sustained, and plaintiffs excepted. This ruling was manifestly an error, under the rule stated above. To the extent materials and work were furnished under the oral agreement in substitution for parts omitted, if properly done and completed, this was, pro tanto, a compliance with their contract; and for this reason the testimony should have been considered and weighed by the arbitrators. Was the ruling justifiable, even on the inquiry of extra charges in excess of the agreed price for the building ?
The case of Abbott v. Gatch, 13 Md. 314 — s. c., 71 Amer. Dec. 635 — is relied on, as supporting the affirmative of this inquiry. The written contract in that case provided, that there should be “no extra charges . . . unless a written agreement be made and attached to the contract.” In that case, alterations were made, by the consent of the contracting parties, and the contractor sued to recover extra compensation for alleged extra work done pursuant to oral instructions given by the employer. There was no testimony tending to show any promise made to pay for extra work. The inference is, that none was made. The court, in its opinion, said: “The claim is placed on the ground, that the defendant interfered with the work, by directing or authorizing these departures from the original design, and in some instances against the opinion of the plaintiff.” The action was “for work done and materials furnished.” It was ruled, that the plaintiff had no cause of action; and reasons were given for the ruling, which are, to some extent, applicable-to this case. The opinion of the court might have been placed on a different ground — namely, that inasmuch as the contractor did not exact a promise of payment for the departure, as for extra work, and did not inform the employer that the change would entail extra expense, the latter might well infer that no extra charge would be made.
Other cases are relied on in support of the ruling of the arbitrators. Starkweather v. Goodman, 48 Conn. 101 — s. c., 40 Amer. Rep. 152 — is somewhat like Abbott v. Gatch, but it went off on the question of agency, without deciding the question we are considering. The two cases, Miller v. *376McCaffrey, 9 Penn. St. 245, and Bo. Cem. Co. v. Coburn, 7 Md. Rep. 202, raised the question .we are considering.' In the first named case the ruling was, “that the defendants are not liable for the increased cost of the work, made with their assent or approbation, where there was no bargain as to the price, according to the terms of the contract; or, unless an express promise to pay the value of the work is proved.” In the latter case it was decided, there could be no recovery for the extra work, it being an alteration, and the agreement and price therefor not being indorsed upon the contract, and there being no evidence of a promise by the owners to pay for the same.”
In this State it has been very many times ruled, and must be treated as settled, that parties may, at pleasure, alter, modify, or rescind a contract, by mutual consent given orally, unless the contract be one which the law requires to be evidenced by writing signed; provided the alteration, modification, or rescission is supported by their mutual assent. 1 Briekell's Digest, 394, § 233; 3 Ib. 152, § 146; Burkham v. Mastin, 54 Ala. 122; Cooper v. McIlwain, 58 Ala. 296; Robinson v. Bullock, 66 Ala. 548; 1 Greenl. Ev. § 302; Bishop Contr. § 812.
We hold that, if the defendant promised to pay for extra work done at his request, and if such work was worth more, considering both materials and workmanship, than the Omitted parts for which it was substituted, then plaintiffs are entitled to recover the difference. If he made no promise to pay, then the presumption arises that the alterations were agreed to be made, and were made, without extra charge.
The defendant testified that, as to some of the items claimed as extra, he embraced them in some of his writings “in a spirit of compromise.” This is not an accurate statement of .the rule of exclusion in such cases. We will not, however, extend this opinion by elaborating the rule. — See 1 Brick. Dig. 838, §§ 479 et seq.; Jackson v. Clopton, 66 Ala. 29; 1 Greenl. Ev. § 192.
: - We have not undertaken to interpret section 3233 of the Code of 1886. No argument has been made upon it, and we will leave its consideration until such time as, perchance, a solution may become necessary.
Be.versed and remanded.