On Rehearing.
The statement in the original opinion that we did not consider new assignments appearing in a written argument filed by appellant on or about submission day appears to have been misunderstood by counsel. We did consider the argument and propositions contained in this reply brief, but did not feel justified in considering assignments there presented for the first time. This action, in our opinion, is not to be construed as a strict and technical application of arbitrary rules. The question has many times arisen, and courts have uniformly held, so far as we know, that new assignments filed in a reply brief on submission day present no question for review. Among cases so holding, see the following: Glover v. Houston B. & T. Ry. Co. (Tex. Civ. App.) 163 S. W. 1063; Greene Gold-Silver Co. v. Silbert (Tex. Civ. App.) 158 S. W. 803; St. Louis S. W. Ry. Co. v. Texas Packing Co. (Tex. Civ. App.) 253 S. W. 864.
It is contended that our opinion fails to touch upon the proposition that ap-pellees were estopped to assert their cause of action for special damages by having reljained and operated the machinery and made payments thereon with full knowledge that it was not producing the quantity of rock warranted.
In our view, this contention is fully disposed of by our holding that it was a case warranting the award of special damages. We did not think it necessary to discuss the contention that the only remedy available to appellees was one for rescission. If that were the rule, special damages would never be recoverable.
Wb have carefully considered the able motion for rehearing, and, while we realize that the evidence in some particulars is not of that conclusive nature desirable, still we are of the opinion that no question presented requires, or warrants, the reversal of the judgment below. The motion is accordingly overruled.