ON MOTION ROE REHEARING.
Jenkins, P. J.Counsel for the defendant contend that paragraph 3 of the court’s syllabus fails to take into account the fact that the trial judge, by his charge to the jury, in fact authorized them to find that the obligations resting upon the plaintiff as prerequisite to his contractual right to a rescission had been expressly or impliedly waived by the line of conduct and the course of dealings between the parties. In the statement of facts accompanying the original syllabus upon the law of this case it was pointed out that the court charged the jury, that “if the vendor had in effect waived the prescribed notice in writing of the defects by accepting oral notice thereof, the vendee was still charged with the duty, after waiting a reasonable time for the defects to be remedied, to return the property to the seller, and that if after the repair work had been done the machinery continued to prove unsatisfactory, it then devolved upon the purchaser, under the terms of the contract, to immediately return the same, and that his failure to do so would prevent a recovery, unless the vendor refused 'to accept it.” We think the charge of the court in thus limiting the question of waiver, which the jury were authorized to consider, to the one proposition of verbal instead of the required written notice, was too narrow and restricted. Unless the jury, under proper instruction from the court, had found for the defendant under its special plea of accord and satisfaction, then, under the pleadings and evidence, we think it was a question for them to say whether the conduct and course of dealings between the parties was such as to indi*632cate that a waiver of the “immediate return” of the machine, after the several alleged unsuccessful efforts to repair its alleged defects, was in contemplation of the parties; and, if so, whether an 'actual good but belated tender by the plaintiff in accordance with the terms of the contract was ever finally made. In our opinion none of the grounds of the motion authorize a rehearing, and it is therefore denied.
Rehearing denied.
Stephens and Smith, JJ, concur.