By the law as it has been settled in this State, a written contract which by its terms is executory as imposing the performance of duties other than the mere obligation of making payment, may while the contract is executory in respect of any part of such duties, be altered, modified or rescinded with or without a writing and without any other consideration than *613that of mutual assent. — Badders v. Davis, 88 Ala. 369; Robinson v. Bullock, 66 Ala. 548; 1 Brick Dig. 394, § 233. And suck change under such circumstances may extend to the waiver of any right either party might have had under the original contract but for the new agreement. — Cornish v. Suydam, 99 Ala. 620. A waiver of a right to declare a contract forfeited may even be implied from conduct of the parties which is inconsistent with the intention to claim a forfeiture. Accordingly, the fact that the contract here involved was acted upon and treated by the parties as in force after the time specified therein for completion of the work undertaken by plaintiffs implied an agreement on the defendants’ part not to treat the failure of completion within that time as a cause of forfeiture — Brigham v. Carlisle, 78 Ala. 243; Stewart v. Cross, 66 Ala. 22.
■ The right of an employer to repudiate all liability to pay for work done in an incomplete performance of a special contract may also be waived by his acceptance and use of the work whereby he receives a benefit. In such case the workman may recover upon the quantum meruit. — Florence Gas, etc. Co. v. Hanby, 101 Ala. 15; 1 Brick. Dig. 397, § 279. A fortiori, the liability exists when the acceptance is by an express agreement to pay for the services, which induces the employe to desist from completion of the work contracted for. — Kirkland v. Oates, 25 Ala. 465.
The application of these principles will dispose of most of the assignments of error.
To establish a modification of the original contract in respect to the length of roadbed to be graded and also a waiver on defendant’s part of unfulfiled stipulations concerning work theretofore done, it was proper to ad-' mit evidence tending to show that defendants orally agreed to the cessation of work by the plaintiffs and to pay them the balance due according to the original rates for grading they had accomplished, and that a payment was actually made under such oral agreement.
By the written contract, weather was named as a contingency which might excuse promptness in completion, and defendants were bound to furnish sewer pipe for the work. Wet weather and their own fault if any in *614failing to furnish pipe might well have induced a willingness on the defendants’ part to waive delays occas-. ioned by such causes and such facts were relevant as furnishing a reason for and a probability of such waiver.
The contract between the defendants as original contractors and the railroad company was immaterial as evidence. Only its specifications for construction were adopted into the agreement between the plaintiffs and defendants and those specifications were set out in full in this contract.
Settlements between the defendants and the railroad company were as to the plaintiffs res inter alios acta.
A witness after testifying that the defendants did not bring the grade up to the engineer’s stakes was asked by defendants’ counsel to state the value of the work that was required to bring the work up to those stakes. Whether in the absence of a plea of recoupment the evidence so called for was relevant we need not decide. Its rejection may be justified because it does not appear that the witness had examined the grade or knew of the facilities for raising it or that he had knowledge of the cost or value of such work.
There was no error in the giving or refusal of charges. Those given were in consonance with the principles we have stated. The refused charges numbered 1, 2, 3, 4, 9, 10 and 11, would have withdrawn from the jury the question of the defendants’ liability upon the contract as modified, if there was a modification, or upon the quantum meruit by reason of acceptan'ce of the work, if there was such acceptance, which questions the jury was in view of the evidence bound to consider.
The oral agreement, if made as the plaintiffs’ evidence tends to show, was an estimation by the parties themselves of the amount to be paid, which dispensed with the stipulation in the original contract for furnishing estimates of the engineer referred to in charges 5 and 8. Charge 6 is argumentative. Charge 7 would have required the jury to take no account of the contract provision for delays by weather or of the evidence tending to show that the work was in fact delayed by rain.
The judgment will be affirmed.
Dowdell, J., not sitting.