On Motion for Rehearing.
The appellant contends we erred in holding that Rule 166-A of the Texas Rules of Civil Procedure requires a party against whom a motion for summary judgment is sought to file opposing evidence supporting their defenses. Appellant pleaded that plaintiff accepted Wiley’s check for the cattle unconditionally. They also pleaded waiver. After plaintiff made out his case, it was incumbent upon defendant to come forward with evidence if they expected to defeat the motion. Our Supreme Court *821in the case of Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 said: “If the defendants expected to defeat the motion for summary judgment by showing an issue of fact as to whether the note was conditionally delivered, it was incumbent upon them to come forward with ‘evidence’ sufficient to raise that question.”
Appellant’s motion for rehearing is overruled.