dissenting.
I agree that a defendant is not required by rule 93(o) of the Texas Rules of Civil Procedure to deny under oath that he is “doing business under an assumed or trade name as alleged,” unless the petition has alleged that he is so doing business. I cannot agree, however, that the petition in .this case, when reasonably construed, does *64not so allege. I would hold that its provisions are clear enough to give defendant notice of his claim and thus to invoke the requirements of rule 93(o).
The majority rest the decision on the circumstance that the petition does not state in any of the numbered paragraphs that defendant was doing business in the name of “CTL Construction Company,” but only states in the opening paragraph or “preamble” that plaintiff is complaining of “C. T. Lambert, individually and d/b/a CTL Construction Company.” The majority point out that the petition seems to treat Lambert individually and “CTL Construction Company” as two separate defendants. The majority would presumably reach a different result if plaintiff had averred in one of the numbered paragraphs, “Defendant C. T. Lambert is doing business as CTL Construction Company,” notwithstanding use of “defendants” in the plural.
In my view, the majority draw too fine a line. No lawyer reading the petition is likely to get the impression that plaintiff is suing both Lambert and a corporation named “CTL Construction Company.” The petition does not identify “CTL Construction Company” as a corporation, and the name itself does not indicate whether the “company” is a corporation, a partnership, or an individual proprietorship. The only explanation of the nature of the company is that stated in the opening paragraph: “C. T. Lambert, individually and d/b/a CTL Construction Company.” Thus, it is clear from the petition that “CTL Construction Company” is intended as an assumed name for C. T. Lambert.
I concede that the expression “d/b/a” is a source of confusion. Apparently, plaintiff’s counsel was confused as to whether an individual doing business in an assumed name has more than one capacity in which he may be sued. Of course, as a matter of law, “d/b/a” does not indicate a separate legal capacity, and an individual doing business in an assumed name may be sued as an individual on any debt incurred in that name. The assumed name is only a matter, of identification. Consequently, any lawyer reading this petition must be deemed to know that when a person is sued “individually and as d/b/a,” only one defendant is named and only one defendant is sued, notwithstanding the use of “defendants” in the plural. The identification of defendant in the opening paragraph as doing business in an assumed name rather that in one of the numbered paragraphs may be an error of form subject to a special exception, but it hardly creates such an uncertainty or an ambiguity in the allegations as to relieve the defendant of the requirements of rule 93(o).
This lack of uncertainty is demonstrated by defendant’s posture before the trial court, which demonstrates that the petition was adequate to inform him of the nature of plaintiff’s claim. The proof of the pudding is the eating. Defendant evidently recognized that he was sued individually for a debt incurred by “CTL Construction Company” because he met the issue squarely by denying that he had contracted with plaintiff in an individual capacity and by alleging that “CTL Construction Company” was a corporation. He failed, however, to verify his answer by affidavit, as required by rule 93(o). At the trial he offered proof “that the debt is a corporate debt, not an individual debt of Mr. Lambert.” The judge sustained plaintiff’s objection to this proof on the ground that defendant was not entitled to present evidence in the absence of a sworn denial complying with rules 93 and 185. This ruling, in my opinion, was correct. Since the defect of form in alleging the “d/b/a” in the opening paragraph rather than in one of the numbered paragraphs was not brought to the judge’s attention in any manner, that defect was waived under rule 90.
Defendant raised no objection concerning the sufficiency of the petition until he filed his brief in this court, in which he asserts for the first time that the petition “names two defendants” and “alleges that the material sued on was sold and delivered to Defendant CTL Construction Company only.” This argument is evidently an afterthought, since defendant’s main argument is that the items in the account are not sufficiently described. That defect, in my *65view, also was waived, M. E. Morgan Co. v. Boise Cascade Corp., 583 S.W.2d 436 (Tex.Civ.App.—Texarkana 1979, no writ). Accordingly, I conclude that the judgment should be affirmed.