I respectfully dissent from the overruling in toto of the appellees' motion for rehearing in this cause, believing that the ends of justice would the better be conserved by reversing and remanding it for another trial only upon the question of whether or not the appellee made payment of the obligation sued upon, as she declared in her pleading; it expressly appears from the record that no trial whatever was had upon that feature, due to the trial court's granting the appellees' motion for judgment upon the conclusion of the appellant's evidence, hence the cause was not fully developed if the appellees did in fact have any such evidence to present; that pleaded defense had nothing to do with the issues upon which the trial court granted their motion for judgment in their favor, and it does not seem consonant with justice to penalize them to the extent of cutting that defense off entirely because they made that motion; in support of this view, this is quoted from 3 Texas Jurisprudence, page 1219: "Upon reversal, the case will be remanded for another trial as of course where upon the former trial the evidence was not fully developed owing to an erroneous ruling of the trial court, or to a mistaken view of the case taken by the trial court which has either prevented the appellee from completely developing his case or has caused him to rest upon an incomplete presentation of it, or may have had this effect. The appellee having rested his case upon an erroneous ruling of the trial judge, the appellate courts are reluctant to deny to him an opportunity of presenting his case afresh after correction of the error, where assurance is given by counsel that additional evidence is available, or where the case is susceptible of further development by additional evidence, or, again, where on another trial additional evidence may be offered." See, also, same volume, pages 1217 and 1220, with footnote cited authorities.
The leading cases apparently to the contrary of this quoted declaration are Bridgewater v. Hooks (Tex.Civ.App.) 159 S.W. 1004, 1009, Blakemore v. Jones, 5 Tex. Civ. App. 516, 22 S.W. 779, 24 S.W. 305, and Sovereign Camp, W. O. W., v. Patton, 117 Tex. 1, 295 S.W. 913, as cited under paragraph 854, 3 Texas Jurisprudence, supra, at the bottom of page 1219; but no one of these cases would seem to furnish an equivalent state of facts to this one, in that in each of them there was no order of the court that induced or at least led to the failure of the appellees to offer evidence material to the fact issues presented by their pleadings, and there was nothing otherwise indicating that the cause had not been fully developed, the reverse of which situations in both particulars expressly appears here. Furthermore, appellees' motion for rehearing gives assurance that evidence of the alleged payment is available, and prays for opportunity to present it, whereas the appellant did not seek the rendition, but merely asked for a remanding.