On Motion for Rehearing. In Houston E. W. T. Ry. Co. v De Walt, 96 Tex. 121, 70 S.W. 531,537. 97 Am. St. Rep. 877, the following is said: *Page 1018
"A defendant has the right to plead inconsistent defenses, and where in one part of an answer he denies or otherwise puts in issue a fact, and in another part alleges its existence, the answer cannot be taken to be an admission of such fact. Duncan v. Magette, 25 Tex. [245], 246. Many other rulings of this court affirming this proposition might be cited. But this is true, not because admissions in pleading are not admissible against the party making them, but because a plea in one part denying a fact, and in another part affirming it, cannot, under our statute, be treated as an admission of the fact. Abandoned pleadings, when offered in evidence, should doubtless be construed in the same way, and not be admitted as conceding a fact both affirmed and denied. But this rule has nothing to do with the admissibility of pleadings in evidence as tending to show a fact which they distinctly allege. If a fact be admitted in the pleadings on which the case is tried, it is, in general, assumed, without other evidence, to be conclusively established for the purposes of the trial," — citing Ogden v. Bossee, 86 Tex. 336, 344, 24 S.W. 798.
See, also, 17 Tex.Jur. § 237, p. 571, and many decisions there cited.
The following announcement in 33 Tex.Jur. § 191, p. 647, is supported by numerous authorities cited: "Since the office of pleadings is to define the issues to be tried, and since pleadings are matter of record as distinguished from matters of evidence, an adversary's pleadings are not required to be introduced in evidence in order to obtain the benefit of any admissions therein. For the same reasons, what is alleged in the pleadings on which the trial is had is conclusive against the pleader. No controverting evidence may be introduced, for no issue as to that fact is presented. However, if an admission was made by mistake, the pleader is not remediless; he should apply for leave to file an amended pleading."
Caulk v. Anderson, 120 Tex. 253, 37 S.W.2d 1008, 1009, was a suit by plaintiff Caulk against Anderson and others as executors and trustees of the estate of George W. Brackenridge, deceased, to recover a fee of $10,000 for medical services rendered decedent. It was alleged in plaintiff's pleadings that George W. Brackenridge had died, leaving a lawful will which had been admitted to probate and in which the defendants were appointed independent executors and trustees of his will. The answer of the defendants was signed by them as independent executors and trustees of the estate of George W. Brackenridge, deceased, and they specially pleaded that the plaintiff had been paid $5,000 with the understanding that the same was in full settlement of his claim against the estate. They further alleged that $1,000 was reasonable compensation for the services for which plaintiff sued, and they sought a recovery over against him for $4,000 excess payment already made. In the disposition of the appeal our Supreme Court said:
"It thus appears that plaintiff in error and defendants in error united in pleading that at the date of the trial the defendants in error were the duly appointed and acting trustees and executors of the probated will of Geo. W. Brackenridge, deceased. The Court of Civil Appeals should not have reversed a judgment for failure to prove a fact admitted by all parties. We have already declared at the present term that the decisions of the Supreme Court `are conclusive that there is no need to prove a fact admitted in pleadings of all parties.' Lafield v. Maryland Casualty Co. [119 Tex. 466] 33 S.W.2d 187, 189."
It thus appears that there is a distinction between the question whether or not a pleading is admissible in evidence to establish a fact that is material to some ultimate issue of fact to be determined in the case and the question whether or not proof of that fact becomes unnecessary by reason of an admission made in the pleadings of both parties on which the case is tried, which is a question of law.
The majority concludes that the motion for rehearing should be overruled, and it is so ordered.