On Motion for Rehearing.
Careful consideration has been given to the motion for rehearing. We have concluded that we were in error in rendering the judgment of the trial court. In our opinion there is no evidence to sustain the finding that the royalty was deeded to Bell by Biffle in satisfaction of the claim by Bell against Biffle for such commission. The deeding of the royalty to Bell by Biffle does not justify the inference that it was deeded in satisfaction of Bell’s claim for $4750.00. We still adhere to the opinion that the judgment was based on accord and satisfaction, which was not plead, and which it was necessary to plead under Rules of Civil Procedure 94 and 95. Appellee objected to the introduction of evidence as to the deeding of the royalty on account of lack of pleading. This objection was good, and should have been sustained. We think the issue of accord and satisfaction of plaintiff’s cause of action was raised by neither the pleading or the evidence. In this case, however, the trial court took the view tliat the pleading was sufficient and that the issue was raised by the evidence. In our opinion the issue was neither raised by the pleading nor sustained by the evidence. However, we think that perhaps justice would be best subserved by reversing and remanding this case to the end that defendant have an opportunity to amend her petition and produce evidence, if she can, that appellant agreed, to accept the royalty to the extent of 1/64 on the 300 acres in question.
It is therefore ordered that our former judgment reversing and rendering this case to be set aside and judgment is here rendered that the judgment of the trial court be reversed and the cause remanded for a new trial.