¶2I would affirm. As a result of the ore tenus hearing, the trial judge could have found that the language in the purchase agreement contemplating payment of the purchase price only upon the complete performance by all the landowners was a provision solely for the benefit of the Pimperls, and the Pimperls could and did waive this requirement. Certainly, the trial court was not palpably wrong in so finding.
¶4I respectfully dissent. I would treat the trial court's holding as consistent with a finding that the language of paragraphs 3(c) and 3(d) was included in the purchase agreement to protect the buyers from being required to close if they could not acquire all of the fractional interests in the property. A provision inserted in a contract for the benefit of a party can be waived. SeeLaGrave v. Jones, 336 So.2d 1330-1332 (Ala. 1976). The Pimperls' conduct clearly constitutes a waiver of the provision protecting them from being required to go forward even if deeds could not be secured for the entire property.
¶5HARWOOD, J., concurs.