On Rehearing
PER CURIAM.Appellees in motion for rehearing earnestly contend that upon the reversal of the judgment of the trial court the cause should be remanded rather than rendered, thus affording them opportunity to plead and offer testimony of partial or total failure of consideration, or other defenses which they *581claim can be done upon another trial of the case.
It is a rule of simple justice that if the case had been tried, upon erroneous theory, or if the plaintiff (or defendant) had been deprived of relevant testimony by some erroneous ruling of the trial court, there would be good reason for remanding the cause for another trial. Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178; London Terrace, Inc. v. McAlister, 142 Tex. 608, 180 S.W.2d 619. But where there are, as here, no affirmative defensive pleadings to raise the issue of partial or total failure of consideration, and no other affirmative defense that would raise an issue or admit testimony in defense of the suit founded upon a written instrument, this Court would not be warranted in remanding the cause for a new trial merely to allow the parties in default of pleadings to do that which they failed to do in the first instance, or to speculate on what they might or could do on another trial. “In pleading to a preceding pleading, a party shall set forth * * * failure of consideration * * * and any other matter constituting an avoidance or affirmative defense.” Rule. 94, T.R.C.P. “A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit. * * * j. That a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part.” Rule 93, Id. “A general denial of matters pleaded by the adverse party which are not required to be denied under oath, shall be sufficient to put the same in issue. * * Rule 92, Id.
The checks in suit import consideration to have been given for value; thus, to impeach their validity, the burden was upon the makers (appellees) to plead and prove a failure of consideration under the provisions of aforesaid rules. A mere denial will not put in issue or admit evidence of an affirmative defense or any other affirmative defense which is required to be pleaded under oath. The only pleading of the appellees was a denial of plaintiff’s basic cause of action; that is, one'founded' upon two checks executed by appellees." While the trial court found facts in süp-pórt of consideration for the checks, such express findings were unnecessary in light of the pleadings, and such checks were deemed prima facie to have been given for, value; and in absence of pleadings1 to impeach their validity the court.could not do otherwise.
Furthermore, to remand this cause, we have no assurance that there would be presented on another trial pleadr ings and evidence to impeach the validity of the checks in suit,: — either as to failure of consideration or as to any other affirmative defense. Court may not speculate on what a party can or may do in the circumstances. We must take the case as presented; otherwise a case would never be concluded. .Therefore, appellees having failed to plead an affirmative defense, they would not have been allowed to prove one; hence appellant would have been entitled to judgment on the checks, irrespec-' tive of appellees’ (oral) motion for judgment; and, further, appellees having led the court to enter the judgment, they cannot complain of any injustice having been done to them in reversing such judgment and rendering judgment as the trial court should have done. Appellees’ motion for rehearing is overruled.