ON MOTION POR RE-HEARING.
Lewis, P. J.,delivered the opinion of the court.
In our former opinion in this cause, we said that we found no testimony in the record tending to prove that the transactions between the parties were mere wagering contracts, and that in the absence of such testimony, the presumption must be of the contrary. The respondent now says, in amotion for re-hearing, that this was a mistaken understanding of the record, and quotes in support of his position the following statements in the bill of exceptions : “ The plaintiffs, to sustain the issues upon their part, offered evidence tending to prove the facts stated in their petition. * * * The defendant, to sustain the issues upon his part, offered evidence tending to support the answer herein.”
Prom this it would appear that there is somewhere in the pleadings an allegation of wagering contracts. The petition, of course, makes no such allegation. The answer is only a general denial. Unless, therefore, it was admissible under the general issue, to prove up the special defence that the contracts were wagering *611contracts, and not enforceable by law, the respondent’s criticism on the opinion is without foundation. We do not think that, upon either principle or authority, the defence was admissible under a general denial of the allegations in the petition.
Our statute provides that: “ The answer of the defendant shall contain: First, a general or specific denial of each material allegation of the petition controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. Second, a statement ■of any new matter constituting a defence or counter-claim, in ordinary and concise language, without repetition.” Rev. Stat., sect. 3521.
This provision is a literal copy of what appears in the same connection in the codes of nearly all the states where the reformed practice prevails, and is substantially the same as in those where it is not literally so. In every one of the states where the question has arisen, it is held necessary that a defendant, admitting the fact of a contract or agreement, but controverting its legality, must set this up as a special defence of new matter, and will not be allowed to prove it under a general denial of the allegations of the petition. Goss v. Austin, 11 Allen (Mass.) 525; Granger v. Ilsley, 2 Gray 521; Denton v. Logan, 3 Metc. (Ky.) 434; Smith v. Owens, 21 Cal. 11; see, also, Campbell v. Hyde, 1 D. Chip. (Vt.) 65; Newell v. Hayden, 8 Iowa 140 ; Hagan v. Burch, Id. 309.
A doubt may possibly intervene as to the application of the same doctrine in Missouri, on account of two decisions of our supreme court. In Greenway v. James (34 Mo. 326), it was declared in general terms that: “Where a cause of action which once existed has been determined by some matter which subsequently transpired, such new matter must, to comply with the statute, be specially pleaded.; but where. the cause of action alleged never existed, the appropriate defence under the law is a denial of the material allegations of the petition; and such facts as tend to disprove the controverted allegations, are pertinent to the issue.” In *612Young v. Glascock (79 Mo. 574), this language is quoted with approval. But in each case, the broad generality of the declaration went far beyond the question under consideration. Both were cases of replevin. A material allegation of the petition was, that the plaintiff was owner of the property in dispute. The reasoning of the decision was, that evidence tending to show that the property belonged to a third person, negatived the ownership of the plaintiff, and was, therefore, directly pertinent to a denial of the facts stated in the petition. But this reasoning has never been considered applicable to a case like the present; not even in Missouri. The defence that a contract is against the policy of the law, and, therefore, not enforceable by legal procedure, does not deny the allegation of the petition, that a contract or agreement was made. It admits the fact alleged and then sets up as a specific defence, the additional facts which should arrest the judicial arm.
Thus, in Sybert v. Jones (19 Mo. 86), the defence was, that the contract was founded on an election bet, and, therefore, not enforceable by law. Our supreme court required, not only that the defence should be specially pleaded, but that the answer should describe the particular election, and should show by sufficient averments that it was one held under the law.
In Sugg v. Blow (17 Mo. 359), it was held that if there was fraud in the making of a contract, (and this, of course, would show that a right of action never existed,) the defence must be specially set up in the answer. We-have not been able to find a Missouri case in which the dictum in Greenway v. James was applied to an action upon contract. We mean no disrespect in the use of the term dictum, which would have no proper application if we were considering an action of replevin. As already shown, the authorities elsewhere are unanimous against the introduction, under a general denial, of evidence to-prove illegality in the contract sued on, as a defeme against it. This being the state of the law, it would be-a violent assumption on the part of this court to conclude *613that, because under the general issue the trial court might or might not have permitted the introduction of evidence tending to establish this affirmative defence; therefore, the allegation that there was evidence tending to support the answer is tantamount to an averment that there was evidence tending to establish the existence of wagering and unlawful contracts-, upon which the plaintiff might not recover. We must, therefore, adhere to the conclusion that no such evidence is apparent from anything in the record.
As to the other grounds urged -for a re-hearing, we find nothing that is not sufficiently met in the opinion heretofore delivered. That errors were committed in the appellant’s favor, furnishes no reason for affirming a judgment against fatal errors committed to his prejudice.
A re-hearing is denied,
with the concurrence of all the judges.