(dissenting in part).
I concur with the majority in holding this case must be reversed and remanded because genuine fact issues were raised as to whether plaintiffs had been given full information as a basis for the releases as required by Article 7425b-23, V.A.C.S., and also as to whether there had been a failure of consideration for the releases because the personal property was not distributed and deeds delivered. I also agree the judgment was erroneous in holding the defendants were released in all capacities.
I do not agree that plaintiffs raised an issue as to whether all of the beneficiaries executed counterparts of the releases so as to make such releases operative. Defendants’ answer and motion for summary judgment with the releases and affidavits attached to them plead the releases in bar. Plaintiffs filed an answer to the motion for summary judgment and the deposition of plaintiff, John Le Tulle, Jr., was offered on the hearing of such motion. There is not the slightest suggestion in any manner that plaintiffs were contending the releases had not' become effective because counterparts were not executed. The trial court had no opportunity at any point to pass upon that question. In fact, defendants’ first point of error, as shown above, which the majority opinion construes as raising this question, is multifarious and should not have been considered by this court under Rule 418.
*800Rule 94 requires a party to specially plead any matter constituting an avoidance. It has been held by the Supreme Court of Texas that a plea that a written release was executed and delivered subject to an unfulfilled condition was a plea in avoidance. Hall v. Rawls, 141 Tex. 235, 171 S.W.2d 324 (1943). Further, the record before us shows these plaintiffs received checks after executing the releases. Under the general rule, these plaintiffs would have been required to tender the amount of money they received, in order to escape the binding effect of the releases.