On Motion for Rehearing
In a well considered motion for rehearing appellee urges that we affirm the trial court’s summary judgment on the authority of Gulf, Colorado & Santa Fe Railway v. McBride, 159 Tex. 442, 322 S. W.2d 492 (1958), and asserts that appellant failed to support his defense of accord and satisfaction by proper summary judgment proof. The statement contained in our opinion to the effect that a movant for summary judgment has the burden of demonstrating the lack of a genuine issue of material fact should not be read as placing upon appellee the burden of negating, in its motion, the appellant’s affirmative defense of accord and satisfaction. However, in this case, as distinguished from McBride, appellant did not merely plead an affirmative defense, but filed affidavit which may be fairly read to state that the payment and assignment to appellee was accomplished at its specific instruction that it be done as accord and satisfaction of the note and debt. While the statements contained in appellant’s affidavit in this respect are not as certain and specific as might be desired, we hold that they are more than mere conclusions and constitute affirmative testimony that the transaction was effected upon appellee’s specific instructions that it be done as accord and satisfaction.
There is an additional reason why the summary judgment was improperly granted in this case. Although not discussed in our original opinion, appellee failed to establish, as a matter of law, that it was the owner and holder of the promissory note in question. The affidavit of E. Edward Ezell, Vice Chairman of the Board of ap-pellee, states that the note attached to ap-pellee’s motion is a true and correct copy of the original but does not state that the original note is in the possession of the ap-pellee or that appellee is the present owner and holder of the note. The authentication of the copy as a true reproduction of the original does not establish the present location of the original. Nowhere do we find in the summary judgment proof clear evidence that appellee was the present owner and holder and in possession of the note as required by Texas National Corporation v. United Systems International, Inc., Tex., 493 S.W.2d 738 (1973). Appellee’s original petition, generally referred to in its motion and apparently verified by appel-lee’s attorney, cannot be considered as correcting this deficiency. Texas National Corporation v. United Systems International, Inc., supra; Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540 (Tex.Sup.1971). Moreover, the attorney’s verification is limited in scope and does not purport to cover such statement. Appellant’s general denial, therefore, prevented summary judgment in the absence of proper summary judgment proof by appellee showing that it was the present owner and holder and in possession of the note. Perkins v. Crittenden, 462 S.W.2d 565 (Tex.Sup.1970); Texas National Corporation v. United Systems International, Inc., supra.
For the reasons hereinabove stated, ap-pellee’s motion for summary judgment should not have been granted and its motion for rehearing is overruled.