On Motion for Eehearing.
In his motion for a rehearing, appellee calls attention to the fact that the admission made by him in pleading that a certain num*606ber of days was used by him in completing his work was made in a supplemental petition and following a general denial. He urges that, as the general denial placed in issue every necessary fact for recovery by appellant on his cross-action, the subsequent admission in another paragraph of the pleading that more time was used to complete the work than authorized by the contract cannot be considered as an established fact in the case.
In making this contention, and in invoking the line of decisions that support it, appellee overlooks the fact that in his original petition, on which he went to trial, the same admission is made in general terms. After alleging the contract, he made this allegation :
“That thereafter, and immediately upon the execution of said contract, the plaintiff set about the carrying out of the same, and thereafter in due time completed said work according to the terms of said contract, and thereafter, about the •-■ day of December, 1923, delivered said building to the defendant, an independent contractor, to complete other work.
The admission made in the supplemental petition is but an elaboration of the admission here made. We are of the conclusion that under the circumstances of this case the contention made by appellee cannot be sustained.
The motion for rehearing is overruled.