dissenting. As I read the record the primary and decisive question is whether appel-lee, with full knowledge of any alleged defects or alleged fraud, failed to rescind the sales of the material in question and thereby ratified them in their entirety. I am convinced that he did, and, therefore, this court should not permit him to escape his just liability on the notes sued on. The undisputed testimony, as I read it, is to the following effect. Appellee received the equipment involved in February 1953 and executed the notes on April 4,1953 and August 20,1953, to pay for the equipment. Appellee made three payments to appellant of $127.60 each, the last of which was made on September 10, 1953 and knew of the alleged defects in the machines a few days after he first put them on location. He made his first complaint to appellant regarding the alleged defectiveness of the machines in January 1954 and appellant’s engineer repaired the machines in January 1954. Appellee expressly affirmed the sales in January 1954 by offering to return the machines to be sold by appellant, with appellee’s account to be credited with the amount so received. Appel-lee waited until August 1954 before making known any complaint regarding the termination of his dealership or any other alleged ground of fraud. The first trial of this case was held in December 1954 which resulted in appellant being awarded, the relief it sought and appellee put the machines out on location after the first trial in February and March of 1955.
Our governing rule, on facts such as are here presented, is re-announced in the recent case of Teare, et al. v. Denniis, et al., 222 Ark. 622, 262 S. W. 2d 134, “Fraud inducing a contract may be waived, and a contract obtained by fraud, being voidable and not void, may be ratified by the party who was induced by the fraud to enter into the contract. Ratification or its equivalent is shown where with actual or constructive knowledge of the true facts a party by acts of commission or omission shows a clear intent to affirm the contract despite the fraud, as where he accepts the benefits thereof or acts in a manner inconsistent with repudiation. After the defrauded party with knowledge of the facts has elected to treat the contract as valid, he cannot change his position and assert that it is invalid. 17 C. J. S., § 165 b, page 520. See Smith v. Bank of Marianna, 176 Ark. 1146, 5 S. W. 2d 335.” In the more recent case of Advance Aluminum Castings Corp. v. Davenport, 224 Ark. 440, 274 S. W. 2d 649, we held: “Headnote 1 — Sales — Fraud—-Payment as waiver of. — Purchaser of cooking utensils, by making monthly installment after knowledge of defects therein, waived any fraud that might have been practiced on him by vendor. ’ ’
The majority opinion points out that our examination of the record discloses that immediately following the jury’s verdict appellant made the following motion: “We wish to move the court for a judgment notwithstanding the verdict of the jury,” and the majority seem to imply that since this motion was not abstracted it should not be considered even though we actually discovered it in the record. The majority goes further and says that in any event this motion was not sufficient to bring to the trial court’s attention the sufficiency of the evidence to support the verdict. I do not agree. In justice and in all fairness, I think that what appellant did was sufficient to call to the court’s attention the sufficiency of the evidence. It seems to me that it would be entirely too technical to hold otherwise.
I, therefore, would reverse the judgment and remand the cause with direction to the trial court to enter a judgment in accordance with the prayer of appellant’s complaint.