On Motion for Rehearing.
Appellant, in his motion for rehearing, attacks, as not supported by the record, our statement that he pleaded in his answer that a note for $145 was executed on the day ap-pellee alleged the $250 note sued upon to have been executed. We should have stated that appellant, by his answer, alleged that he executed appellee a note for $145, and testified on the trial of the case that it was on or about the’time appellee alleged that he executed him the $250 note sued upon. The matter, however, is wholly immaterial, since this was a mere statement of the pleadings, and was not decisive of any point in the case.
Appellant also insists that the following statement in our opinion is not supported by the record:
“The only question in dispute was the amount of the note executed, and whether its consideration had failed.”
This was our conclusion which we had reached as to the evidence and the pleadings in this case. It is the right of this court to draw any legitimate conclusions that the pleadings and the evidence may support. It is not disputed by appellant that he did allege that he executed appellee a note of $145. He a-lso alleged in detail all the facts of the transaction for which the note was given in settlement. He then pleaded facts by way of a plea of failure of consideration. He also pleaded the failure of consideration in bar of appellee’s right of recovery, and that he be permitted to “go hence without day with his costs, and for general and special relief.” To this plea appellee filed a supplemental petition, which, in part, consisted' of a general denial. Nowhere did appellee specially deny any fact alleged by appellant in his answer as to the transaction for which the note was executed in settlement. The effect of this general denial was that a note for $145 was not executed, hut appellee still insisted that it was for $250. It also had the effect Of denying a failure of consideration of either the note for $145 or $250, and that the transaction for which the note was given in settlement had not failed, as alleged by appellant in his answer, because the appellee had not performed his part thereof. The office of a general denial is to put in issue conclusions pleaded constituting the opposing party’s cause of action or defense as the case may be. A special denial is to controvert some specific fact pleaded by opposing party. So, in this case, appellee’s general denial had the effect of saying to appellant:
“You executed me a note for $250 and not for $145, and the consideration for the note executed has not failed because of the matters alleged by you.”
Appellee’s pleadings did not stop here, but continued, and prayed that in any event he wanted “the judgment of the court,” and “that he have judgment for his said debt, interest, and attorney’s fees, and costs in this behalf expended, and for general relief.” What debt? The one appellant alleged had failed because appellee refused to perform his part of the transaction by which it was created. Upon these pleadings the trial-court proceeded Appellant offered testimony that the note he executed to appellee was for $145 and was made in settlement of a certain transaction whereby he became the purchaser of appellant’s interest in a land lease contract and certain farming implements and a teaip. Appellant pleaded and *165testified that appellee was to have paid the annual rental maturing on said lease at a certain date, which he failed to do, and, by-reason thereof, he lost his place, and hence the consideration for the note failed. There was no difference in appellee’s testimony and that of appellant, except appellee stated the note was for $250, and that he was not to pay the annual rental alleged. The trial court found the note was for $145, and that appellee was not to pay the annual rental on the lease as alleged by appellant. We still maintain the view that this pleading-resolved the litigation into a suit for debt, evidenced by a note of either $250 or $145. The trial court having found upon a hearing of the testimony that it was for $145, he correctly rendered judgment therefor.
Appellant cites the eases of Phelps et al. v. Zuschlag, 34 Tex. 371, and Bank v. Reep (Tex. Civ. App.) 188 S. W. 507, as supporting his contention here. We have carefully examined these authorities, and did so when we wrote our opinion, and do not find them in point on the question here presented.
The first case cited merely holds that where a plaintiff sued on notes, and the jury found that they were executed and delivered under duress, but further found that the 'maker really owed the plaintiff the amount of the notes at the time of their execution, the plaintiff could not recover the amount of the debt, since he had declared upon the notes solely. ^
In the second case cited it is held that where the bank sues on a renewal note, and alleges that it was in extension and renewal of certain other notes which the bank owned, but which it did not seek judgment upon in that suit, no judgment should be rendered for the original nótete, for the reason that the plaintiff had not declared upon them.
We do not have that state of facts in this case. In those cases where the suit was for larger notes and the defense was the execution of a smaller note, no effort was made to sue for the debt evidenced by the note or notes. In none of these cases did the defendant by his voluntary pleading insist upon relief- against the lesser or smaller note which he claimed to have executed, because of failure of consideration of such smaller note. Appellant asked the ‘ adjudication in this case of the smaller note, because of the failure of consideration. Appellee contested the failure of consideration by his pleadings, and prayed for judgment for his debt. It would certainly be a supertechnical construction of pleading to require a plaintiff to specifically pray for judgment of a lesser note set up as a defense to a larger note sued upon when the defendant admits by pleading the execution of the smaller note, but insists that he should not pay it because of failure of. consideration, which the plaintiff denies and asks for judgment for his debt. In other words, the defendant in this case put in issue by his pleading a failure of consideration for the debt evidenced by the $145 note, and asked that in any event he be granted relief against the debt or note.
The motion for rehearing will be overruled.