Appellee presents two arguments in justification of the action of *Page 142 the trial judge in giving the general affirmative charge, for which the judgment has been reversed.
1. It is contended that since plaintiff replied specially to defendant's special pleas 8 and 9, and the record exhibits no formal written plea of the general issue to plea 3, 4, 5, 6, and 7, those pleas must be taken as confessed, citing Miller v. Johnson, 189 Ala. 354, 66 So. 486; Williams v. Holder,202 Ala. 652, 81 So. 608; Ray v. Fidelity-Phoenix F. Ins. Co.,187 Ala. 91, 65 So. 536.
This is of course a familiar rule of pleading, and not to be controverted. But counsel overlooks the fact that the judgment entry recites that "thereupon issue being joined on counts 1, 2, 3, 4, 7, and 8, of the complaint, and pleas 1, 2, 3, 4, 5, 6, 7, 8 and 9 as an answer to the complaint," etc.
This recital is conclusive to the effect that issue was joined on all of defendant's special pleas and that they were not confessed. Hatchett v. Molton, 76 Ala. 410, 411; Bradford v. Boozer, 139 Ala. 502, 36 So. 716; Powell v. Henry,96 Ala. 412, 413, 11 So. 311; Prov. Sav. Life Ins. Society v. Pruett, 157 Ala. 540, 47 So. 1019; Smith v. Br. Bank, 5 Ala. 26. In the face of such a recital in the judgment it is obvious that the cases relied on by appellee are not in point.
2. It is contended also that plea 3, to which plaintiff's demurrer was overruled, was fully and completely proven without dispute; and hence, no matter how immaterial the plea may have been as to some of the counts of the complaint, plaintiff's joinder in issue thereon entitled defendant to the general affirmative charge, as given.
This rule, though highly technical, and sometimes promotive of injustice, has been firmly established by our decisions. Cent. of Ga. Ry. Co. v. Gross, 192 Ala. 354, 68 So. 291; White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199, 54 Am. St. Rep. 159. But a party who invokes this technical rule must himself submit to its rigorous logic; and every allegation of the plea must be proven without dispute, in order to justify an affirmative instruction.
While the provisions of the contract set up by plea 3 were shown without dispute, the allegations of the plea as to the origin and manner of the negotiations preceding the contract were in sharp conflict. The affirmative charge for the defendant, on the theory that plea 3 was proven without dispute, was therefore improperly given.
We find no support for the application for rehearing in the considerations urged, and the application will be overruled.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.