On Rehearing.
On their motion for rehearing, appellants strongly urge that we- were in error in *1009holding that the issue of whether or not the alleged compromise agreement was ever consummated was such issue as the trial court could find and presumably did find in support of the judgment in favor of Mrs. Rawls. In that connection they contend that such issue was an independent ground of defense relied upon by .Mrs. Rawls, and since she did not request and obtain a finding on it, she waived it.
We do not differ in any respect with appellants’ construction of the rule announced by our Supreme Court in Wichita Falls & O. Railway Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, to the effect that the power of the trial court to make findings, in cases tried to a jury does not extend to an ultimate or independent ground of recovery or defense, and that such an issue when not requested and not submitted is waived. But it is our view that such rule, on the record before us, does not entitle the appellants to a reversal of this case. This for two reasons. First, the issue of whether or not the alleged compromise* agree-, ment of 1938 was ever consummated was not the ultimate issue but was only part .of appellants’ defensive issue that the contract of 1935, upon which Mrs. Rawls sued, had been superseded by a compromise agreement. Rodriguez v. Higginbotham-Bailey-Logan Co., Tex.Sup., 160 S.W.2d 234. See opinion Court of Civil Appeals, 144 S.W.2d 993. Second, the issue was purely a defensive issue relied upon by appellants and if it was such, issue as the court could not find, then appellants, and not Mrs. Rawls,, waived it by failing to request that it be submitted.
As pointed out in the original opinion, Mrs. Rawls based her cause of action on the original contract made in 1935. She offered evidence in support of it and obtained jury findings in her favor thereon. It was the defendants (appellants) and not Mrs. Rawls, who relied upon the alleged compromise agreement of 193.8. They urged it as a ground of their defense against Mrs. Rawls and undertook to- establish that it superseded the contract of 1935 upon which she grounded her suit. To do that it was necessary for them to show, not merely the terms of the proposed settlement, but also that it in fact became the contract of the parties. Appellants established the terms of the proposed settlement by the written instrument and proof of the surrounding facts and circumstances, which disclosed without dispute that if made the effect of it was to supercede the prior contract and thus defeat Mrs. Rawls’ suit by destroying the contract upon which her suit was grounded. But the other essential fact — the fact of whether or not Mrs. Rawls ever agreed to it, was a strongly contraverted fact. Her proof that she signed the instrument conditionally, that the condition was not met, and that she never agreed to it, was merely in rebuttal of appellants’ fundamental ground of defense. It formed no part of the cause of action sued upon by her, and her proof in rebuttal of appellants’ defense did not have the effect 'of shifting to her the burden of obtaining a jury finding on the issue. The burden of it rested with the defendants.
We are still of the view expressed in the original opinion, that the question of whether or not the compromise settlement was consummated, was merely part of the broader fundamental defensive issue that the contract of 1935 sued upon by Mrs. Rawls had been settled by the alleged compromise of 1938. So viewed it was such incidental issue as the trial court could find in the absence of a request for its submission. But even if we should be in error in that, then the appellants are in no better shape, for in that event they and .not Mrs. Rawls waived it.
The motion for rehearing is overruled.