On Petition for Rehearing.
Rehearing denied.
BOND, Chief Justice.On original submission I voiced dissent, holding final conclusion, however, to a further review of the record on rehearing. I am in accord with the findings of the jury and that of the majority on the factual background in this appeal; only differ with the majority conclusion, viewed from the record, that the subsequent transaction of the parties was an accord and satisfaction, — a new and independent transaction free of the inducing misrepresentations and fraud attributed to the sellers of the road machinery in question at the time of appellant’s purchase.
In the original transaction of November 1, 1947 the appellant purchased a “dragline” and “motor grader” for the sum of $15,000; which transaction, as found by the jury, was induced by false and fraudulent representations by the sellers (appellee a party thereto) as to its mechanical worthiness and suitability for the purposes for which . it was intended. The consideration in that transaction was evidenced by check for $15,000 drawn by appellant, which, at the instance of the maker, was dishonored by the receiving Bank and the machinery brought ba-ck and delivered to appellees on their lot or .place of storage. Whereupon all the parties involved in that transaction arrived at a tentative agreement, involved in this appeal.
The testimony is uncontroverted that a settlement of the controversial issue as to the “dragline” was satisfactorily made, agreeable to all parties, by the appellant paying therefor the sum of $9,250; leaving the adjustment for the motor grader which was postponed “to try to get the equipment in 'shape,” in accordance with the terms and representations of seller’s warranty. The plaintiff’s suit is based on the $4,750 check as a liquidated demand, and defendant’s cross-action or defense was grounded on the original transaction. There is no pleading or evidence by either party of any new and independent cause of action or waiver of the warranty. The verdict of the jury relates the fraud and misrepresentations inducing the sale of the motor grader, i. e.: (1) That prior to November 1, 1947 the sellers represented the motor grader to be in excellent condition, nothing wrong with it, that it would do all the work required of it in furtherance of the purchaser’s contract with a named construction company; (2) that the purchaser relied on such representations and would not have purchased the motor grader but for such representations; (3) that such representations were false, in that the motor grader was not ■suitable for the purposes for which it was purchased, and was defective on the date *490of purchase; and (4) that the motor grader was worth at the date of purchase the sum of $2,500.
It will be observed from the record that the plaintiff raised no objection to the charge of the court or the issues therein submitted, and requested no further issues as to any subsequent new -and independent contract involving accord and satisfaction, or waiver of the conditions incident to the purchase of the motor grader. Such issue, if same was raised ¡by evidence, being plaintiff’s affirmative defense to the defendant’s cross-action for damages, in absence of a request for such submission the plaintiff waived the issue. Rule 279, T.R.C.P.
Be that as it may, the uncontroverted testimony as reflected by the record and as I interpret the majority opinion, is that the subsequent transaction as to the motor grader, for which the $4,750 check was executed to the plaintiff Bank, was for a conditional tryout after necessary repairs had been made to the motor grader to make it usable as represented and warranted by the sellers. It was a continuous transaction, permeated from its inception by the fraud and misrepresentation of the appellee and its associates. The testimony of W. H. Moser as quoted by the majority shows conclusively that the controversy over the dragline was settled for $9,250 which was paid, and that the defendant took the motor grader and put it on the job to test its usability. He testified: “Q. What conversation did you have with Mr. Landreth of the Mercantile National Bank with reference to the transaction ? A. I told him the condition of the equipment and agreement, and what happened to the equipment, and I felt like I had been out quite a bit of money and time, and that if I endeavored to keep the equipment, he should make some compensation and mark off some of the original price, so that it would justify me to try to get the equipment in shape. * * * Q. How was the price of $4750 for the motor grader arrived at? A. I prorated the prices according to the amount. * * * Q. Was some new checks issued? A. There were. * * * Q. What was the amount of the two checks? A. One was $9,250 and the other $4,750. * * * Q. After that agreement was arrived at, in that conversation with Mr. Landreth, you paid $9,250, or Mr. Teders issued his check for that amount, and that check, did that clear the bank ? A. It did. Q. How long after this check for $4750 for the motor grader was issued before payment was stopped on that? A. I believe it was approximately 8 days or 10.” (Emphasis mine.) Evidently the delay in presenting the check was in consonance with the testimony for appellant to “try to get the equipment in shape.”
It will be observed from the record evidence above stated and from the opinion of the majority that the evidence does not support an issue of accord, novation, waiver, estoppel, ratification, or any of the affirmative matters which were not pleaded; no evidence to sustain them as to justify the conclusion of the majority that the defendant waived the fraudulent representations of the machinery in taking such machinery to try to make it work on the job, or “try to get the equipment in shape”; but conclusively shows that the defendant merely made the arrangements in an effort to make the motor grader perform the services which he intended it to perform and which the seller represented that it would do. The evidence further shows that after this last transaction and the expenditure of a great amount of money and labor by the purchaser, the motor grader would not perform the services for which it was intended; thus it was returned to the seller.
In my opinion the judgment of the trial court should have been that the plaintiff recover nothing by its suit, in conformity to the verdict of the jury. The trial court was not warranted to decide the issue of waiver on plaintiff’s motion non obstante in absence of pleadings, evidence, and request for submission of plaintiff’s affirmative issue of waiver, if in fact such issue was raised on trial of the cause.
I respectfully register my disapproval of the conclusion of the majority in affirming *491the judgment of the trial court. Appellant’s motion for rehearing should be sustained and judgment here rendered, as the trial court should have rendered, that plaintiff take nothing by its suit.