On Appellee’s Motion for Rehearing.
The main contention of appellees’ motion is that in appellants’ original answer the fact that the architects would not have allowed the substitution in any event was not pleaded as a defense to the action. It is conceded that this issue was fully pleaded in appellants’ supplemental answer. As stated in our original opinion, appellees themselves pleaded this issue as constituting an element in their cause of action. The general denial put in issue all allegations of their petition. It may be seriously questioned, under the holding in Boswell v. Pannell, 107 Tex. 433, 180 S.W. 593, whether appellees, by their affirmative pleading of this issue, assumed the burden of proof as well as of allegation. We d* not pass upon this issue. We merely hold, as in our original opinion, that the pleadings were sufficient to admit the evidence. It should be noted, also, that neither the objection to the evidence, nor the court’s pronouncement in excluding .it, intimated that the issue was not raised by the pleadings. All parties, including' the trial judge, manifestly assumed that the issue was sufficiently raised. This was the theory upon which the case was tried below, and we see no valid ground for giving a construction to the pleadings, not then urged, but urged for the first time upon appeal.
The motion is overruled.
Overruled.