delivered an opinion on motion for rehearing.
The defendant claims that the opinion of the court is in conflict with the decision in the case of State v. Finn, 19 Mo. App. 560. Although that case was not cited in the brief of counsel, its bearing upon the present case was examined before the opinion was written. In that case the defendant pleaded the general issue and statute of limitations, and the court erroneously sustained a demurrer to the plea of the statute. As it is well settled in this state that the statute of limitations must be specifically pleaded to be available as a defence the defendant by the erroneous action of the court lost the benefit of a well-pleaded defence. Hunter v. Hunter, 50 Mo. 445. In the present case the special *199defence set up in defendant’s answer might have been established under the general denial, because under a general denial the defending party is always at liberty to disprove the contract asserted against him by proving that it was materially different from the one so asserted. Wilkerson v. Farnham, 82 Mo. 672, 679. Moreover it distinctly appears that the defendant sought to establish his special defence by evidence, and failed to do so, not because the evidence was rejected but because it was insufficient.
There is no merit in the motion and it. must be overruled.
All concur.