On Motion for Rehearing
PER CURIAM.Appellant has requested that the following statement be included in our statement of the case and we gladly comply:'
*827“The appellant testified that when ap-pellee agreed to cancel the lease, she told him to contact Mr. Nardecchia, her agent, and advise him of their agreement and that she would call Mr. Nardecchia and confirm it. Appellee testified that she immediately called Mr. Nardecchia, but she did not recall what she told him. Mr. Nardecchia was unable to recall having talked with appellee concerning the conversation between appellee and appellant.
“Appellant testified that he did call Mr. Nardecchia and did tell him of the agreement made between appellee and appellant to cancel the lease and that on November 13th, Mr. Nardecchia met him and showed him several smaller places for rent and that he rented one of them and paid the rent therefor to the firm of Buratti & Montandon, for whom Nardecchia worked. Appellant testified that on the day following, i. e. November 14th, he moved his belongings from appellee’s premises and turned the key to them over to Mr. Nardecchia. Mr. Nardecchia by his testimony admitted renting the new place to appellant.”
Appellant complains of our holding that the statute of frauds was well pleaded, citing Riley v. Gray, Tex.Civ.App., 275 S.W.2d 171.
The court there said that even though special exceptions raised the defenses of want of consideration and illegality these matters should also be pleaded affirmatively.1
Rule 452 provides that “All pleadings shall be so construed as to do substantial justice” and Rule 85 that an answer may consist of many matters including “special exceptions.” Rule 71 provides that a pleading mistakenly designated may, if justice so requires, be treated as if properly designated and Rule 68 provides for repleader if the court deems it necessary.
Under these rules we are of the opinion that appellee’s pleading set out in the original opinion, sufficiently pleads the statute of frauds under Rule 94 regardless of the designation given such pleading.
If we are incorrect in holding that the statute of frauds was well pleaded then we are of the opinion that prejudicial error against appellee was committed in overruling her special exception. See McDonald Texas Civil Practice, pp. 883-4. If this special exception had been sustained to the extent that appellant be required to plead that the contract of rescission was oral or written then appellee would have had the information with which to intelligently draw her pleadings.
Appellant cites several cases as deciding that it is not necessary to allege that an agreement regarding land is oral or written. These cases were decided when the general demurrer was a good pleading and before the adoption of the present Rules.
We believe appellee’s exception well taken under Rule 91.
We do not believe we are required to remand this case in order that appellee may plead the statute of frauds when we are assured that she will do so. A case should not be remanded when the trial must result in an instructed verdict for appellee. Arkansas Fuel Oil Co. v. State, Tex., 280 S.W.2d 723.
The motion is overruled.
Motion overruled.
*828On Appellant’s Second Motion for Rehearing
Appellant cites our opinion in State v. Arkansas Fuel Oil Co., Tex.Civ.App., 268 S.W.2d 311, reversed Tex., 280 S.W.2d 723, as holding that a special exception addressed to the failure of a petition to allege that a contract made the basis of a suit was oral or in writing is not well taken even where the contract, if oral, is invalid under the statute of frauds. In that case the contract declared upon was not required to be in writing. There, too, all the facts pertaining to the contract were alleged in the petition and whether the contract was oral or written could be determined therefrom.
In Goen v. Hamilton, Tex.Civ.App., 159 S.W.2d 231, 232, Amarillo, the Court held that the trial court erred in sustaining what “in our judgment, amounted to a general demurrer.” This was a suit for real estate commissions and controlled by Sec. 22 of Art. 6573a, Vernon’s Ann.Civ.St. Part of the exception was directed to the failure of the petition to allege that the agreement was in writing. The Court, citing several early Texas cases, held that a pleading declaring upon a contract within the statute of frauds is not subject to an exception because of the failure to allege that the agreement was in writing.
In Cross v. Everts, 28 Tex. 523, cited in Goen, it is stated that in such cases the contract declared upon “will be presumed to be in writing.”
The presumption is, of course, valid when tested by a general exception. It seems to us that it is not consistent with the general rule applicable to special exceptions. We quote from 33 Tex.Jur. 628-9:
“As Against Pleader — On Special Exception. — At common law it is a cardinal rule that a pleading is to be construed against the pleader — that is to say, when the meaning is equivocal the pleading is read in the sense contended for by the pleader’s adversary, the theory being that the pleader has expressed his averments as favorably to himself as he could, and that the obscurity is intended with a view to obtaining some unfair advantage. This rule of construction has been adopted in Texas; but in our system it is invokable only where the pleading is by special exception challenged for indefiniteness, uncertainty, discrepancies, or some other cause specified in the exception; or where the demurrant has specified the element of the cause of action or defense omitted from the allegations.
“The principle that a defect in pleading can be supplied by inference does not obtain when such defeat is pointed out by a special exception; the rule is that its allegations must be certain to a certain intent in order for the pleading to stand against such an attack.”
We believe our holding in this respect correct on principle but consider a decision of the-question immaterial in view of our opinion that the statute of frauds was well pleaded.
The motion is overruled.
Motion overruled.
. We have examined the three cases cited by the court to sustain its ruling. The first two cases involve Rule 93 which requires verification and the last Rule 94 in which the court merely holds that under Rule 94 the party relying on illegality of a transaction must plead and prove it. We submit that none of these cases is authority here,
. All rule references are to Texas Rules of Civil Procedure.