Metrocon Construction Co. v. Gregory Construction Co.

ON MOTION FOR REHEARING

AKIN, Justice.

Gregory argues on rehearing that our original opinion improperly places the burden of proof with respect to the issue of modification of the contract. According to Gregory, modification in the context of this case is a rebuttal denial, with the burden of proof on the plaintiff to prove not only the terms of the contract, but also the terms of the modification alleged by Gregory. We adhere to our original opinion that the burden of proof was properly upon Gregory because modification is an affirmative defense.

By an affirmative defense a defendant, rather than denying the existence of the plaintiff’s allegations, attempts to avoid the plaintiff’s allegations by proving a new, independent fact. Modification is such a defense. The defendant does not deny the term of the contract alleged by the plaintiff nor that he entered into that contract with the plaintiff. Neither, does he refute the factual allegations which the plaintiff contends to be a breach of that contract. Instead, the defendant attempts to avoid the plaintiff’s averment by proving facts which fall outside those averments. Consequently, the defendant must plead and prove that he made an offer and that the plaintiff accepted a new contract which supplanted the prior contract. Thus, by definition the new contract upon which the defendant relied is an affirmative defense rather than a rebuttal denial.

The definition of an affirmative defense applies to the present case. Gregory did not deny that it entered into a binding *465contract with plaintiff and did not deny that the contract covered the building of the wall which was the subject of the suit. Indeed, the defendant did not deny the payment of an additional $41,000 by Metro-con to do work covered by the original contract. Instead, Gregory sought to avoid the legal consequences of the factual allegations of Metrocon by showing a new and independent fact, which was a modification of the original contract by creating a new relationship between the parties with respect to the wall in question.

We perceive of no reason why it is unreasonable to place the burden of proof of modification on a defendant. Since the defendant relies on this new and independent fact as his defense, the burden should be upon him to adduce evidence that the modification occurred so as to convince the fact trier. Furthermore, the defendant should be placed under the concomitant duty of pleading this new and independent fact, so that the plaintiff will be apprised that he must rebut a fact beyond the allegations of the pleadings.

Apart from the notice problem, a number of other reasons exist as to why it would be unreasonable to place the burden of proving a modification on a party who does not rely upon that modification for recovery. To place that burden of proof on the plaintiff in this case would be to place a negative burden upon the plaintiff. In essence, Gregory would require Metrocon to prove that the contract had not been modified, but Gregory would apply a different rule when a contract had been discharged by means of rescission or payment. Although Gregory acknowledges that rescission is an affirmative defense, he attempts to place modification in a different category. In this respect, in the context of this case, modification and rescission are similar because under each theory the legal duties established by the prior contract are terminated. However, with respect to a modification, an additional step exists which creates new legal relationships between the parties. Yet in both situations, the party seeking to avoid the prior contract is doing so by alleging a fact new and independent of the plaintiffs allegation.

Gregory, in support of its contention that modification is a rebuttal denial, cites Mar-Lan Indus., Inc. v. Nelson, 635 S.W.2d 853 (Tex.App. —El Paso 1982, no writ). Mar-Lan concerned whether evidence of a modification of a contract could be introduced under a general denial and held that evidence could be introduced without the support of specific pleadings. We disagree with the implication of Mar-Lan that modification is simply a rebuttal denial. We note that the court in Mar-Lan did not have the question before it clearly presented in terms of affirmative defenses and rebuttal denials. The lack of clarity of the issue may have led the Mar-Lan court into error. In any event, in Mar-Lan as here, modification was an affirmative defense. Accordingly we specifically disagree with the holding of Mar-Lan and decline to follow it.

The motion for rehearing is overruled.