On Rehearing. A careful reconsideration of this case has convinced the majority that an incorrect disposition thereof was made by us in the original opinion. We now think the trial court erred in failing to submit to the jury special issue No. 1, requested by defendant. This special issue is copied in the original opinion and need not be here repeated.
In addition to the statement contained in the original opinion, we think the following should be made: On that phase of the case involving the note of $394.40 to Bennett Motor Company, the defendant below, appellant here, pleaded, in substance, that the note was paid by plaintiff to the Commercial Credit Company, who obtained same from Bennett Motor Company, under an agreement based upon a valuable consideration, whereby plaintiff agreed to charge to the defendant, as an open account, the amount of money which it cost plaintiff to discharge this note, and that defendant should pay same to plaintiff at the rate of $10 per month. This defense was pleaded at great length. Defendant also pleaded that he had, in fact, paid the open account, and did not owe the plaintiff anything.
It was obviously important, from the defendant's standpoint, to have determined the question of whether plaintiff had a right to sue on the note, or whether the suit should have been based upon the account. The question of attorneys' fees was involved. If the suit was on the note, a different rate of interest would obtain, and a different period of limitation govern. Besides, the petition having declared on a note, it would not sustain a recovery on an open account. A determination by the jury of this particular issue presented by the group of facts specially pleaded by the defendant was essential to a determination of whether plaintiff was entitled to any recovery at all on this phase of the case.
Defendant's right to have this group of facts, pleaded and relied upon by him as a defense to plaintiff's cause of action, separately and clearly submitted to the jury, is guaranteed to him by the plain mandate of the statutes. Article 2189, R.S. 1925. All questions about the construction of this statute were removed by our Supreme Court in the case of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517, 522. The following language in that opinion clearly announces the rule: "Each group of facts pleaded by defendant in error, which, standing alone, would, if proven, constitute a complete defense to plaintiff in error's suit, presented an issue. It was the statutory right of defendant in error to have the issue presented by each complete plea submitted separately to the jury, just as plaintiff in error had the right to have submitted each issue, entitling her to recover, which she pleaded and proved."
This rule has been uniformly followed by that court without modification or exception. This court has had occasion to apply and follow it many times heretofore.
It may be that the general issue contained in the charge on the question of payment was comprehensive enough to cover this defensive pleading, but, in our opinion, it was entirely too comprehensive to present separately this group of facts pleaded by the defendant as a defense. In the Fox Case, supra, a general issue was submitted broad enough to comprehend the various issues of contributory negligence pleaded by the defendant, but the opinion disposes of the contention that defendant's special defenses were comprehended in this general charge in this language:
"Each of these charges directed the jury to answer the general question against plaintiff in error if the evidence established a specified group of facts constituting a defense to plaintiff in error's suit, under the law of contributory negligence. These charges contained explanations which were necessary to enable the jury to properly answer the court's comprehensive question, and hence were required by the express terms of the statute."
In the instant case the jury's answer that the note had not been paid by the defendant might well have been based upon a finding by the jury that defendant had not paid his open account. His right to prevail in the *Page 210 suit, as pleaded, did not rest upon an affirmative finding that he had paid the account, provided the jury had found that plaintiff had paid the note under an agreement with defendant whereby it was extinguished and superseded by the contract to pay monthly on account.
In the original opinion it was questioned whether appellant's brief presented any questions for determination. As appears from the opinion, we did, in fact, consider the case, and we feel that appellant was entitled to have a consideration thereof, notwithstanding the propositions seemed to bring to the foreground the question of limitation, which, of course, was not a defense to plaintiff's suit, as pleaded, but would only be a defense in the event suit should be instituted upon the account. Assignment of error No. 1 is clearly a good proposition. Proposition No. 1 shows the importance of the special issue requested by defendant; and, at least, the purpose and spirit of the briefing rule, are not violated by considering this case on its merits. No undue amount of the court's time is required to determine that the question is in the case.
For the reason above given, the motion for rehearing is granted, the judgment of this court heretofore rendered is set aside, and it is ordered that the judgment of the trial court be reversed and the cause remanded.