On Motion for Rehearing.
In his motion for a rehearing appellant earnestly insists that we were iñ error in holding that the trial court could properly consider admissions contained in defendant Curry’s verified pleading in passing on his requested finding that the dealings of defendants Murphy and Holl with Dobbs and plaintiff were not within the Scope of the partnership formed by defendants Murphy, Holl and Curry on August 6, 1944. He relies on a rule of law which is well established, to effect that where a defendant answers by a general denial matters alleged by him in a special plea cannot be considered as judicial admissions against him. Silliman et al v. Gano, et al, 90 Tex. 637, 39 S.W. 559, 40 S.W. 391; Hynes v. Packard, 92 Tex. 44, 45 S.W. 562; Houston, E. & W. T. Ry. Co. v. De Walt, 96 Tex. 121, 70 S.W. 531, 97 Am.St.Rep. 877; 8 Tex.Jur.Supp. *2961937-1947, p. 292, Sec. 215. We think these authorities have no application. Plaintiff alleged that defendants Holl, Curry, Murphy and Bowlin composed the partnership firm of Russell Brokerage Co. and that prior to January 16, 1945, said defendants were indebted to Dobbs in the sum of $10,412.66. Defendant Curry did not deny the partnership by verified affidavit, as required by Rule 93, Texas Rules of Civil Procedure. His general denial did not put the question of partnership in issue. His special plea practically admits the existence of the partnership between August 6, 1944- and January 29, 1945. Drew v. Harrison & Bros., 12 Tex. 279. As indicated in Houston, E. & W. T. Ry. Co. v. De Walt, supra, it is only where a defendant by general denial or otherwise puts in issue a fact that his pleading on which the case is tried admitting such fact cannot be considered as a judicial admission against him. In his special plea defendant Curry alleged a partnership between Holl, Murphy and Curry. The facts alleged in such plea which were put in issue were: That the obligation to Dobbs was in existence and was created prior to the date of such partnership; that he, Curry, knew nothing about it or about its assignment to plaintiff; and that a novation was effected by the- agreement of March 23, 1945, alleged by plaintiff. With reference to these facts specially alleged, all the facts alleged in the special plea that were beneficial to the plaintiff in disproving the facts put in issue by such plea are judicially admitted and need not otherwise be established. The rule is thus tersely stated in Fowler v. Davenport, 21 Tex. 627, at 634:
“The general issue or general denial puts the plaintiff upon the proof of his cause of action by evidence, whatever else the defendant may have, pleaded. Each plea presents a separate issue. The special plea in this -case presents the issue that defendants used due diligence as private carriers and ordinary bailees for hire. With reference to that issue, thus presented, all the facts stated in that plea that are beneficial to the plaintiff, in disproving that issue, are admitted, and need not be otherwise established. A case might arise where there would be inconsistent and contradictory allegations in the same plea, and in that case the rule might well obtain that, for the purpose of the issue presented by that plea, the allegation most favorable to the plaintiff should be treated as an admission in his favor.”
This rule is certainly applicable where the allegations of special pleading which tend to establish the facts put in issue by it have not been put in issue by the general denial. Those allegations are the existence of the partnership consisting of Russell Brokerage Co,, Hot Springs Box Co., Wood Fabricating Co., and Si-Nif Company, and the terms of the dissolution of such partnership which were not alleged by plaintiff and hence not put in issue by the general denial.
We adhere to the view that the trial court could properly consider such admissions as well as the evidence in determining whether the dealings of defendants Murphy and Holl with Dobbs and plaintiff were within the scope of the partnership formed by Murphy, Holl and Curry on August 6, 1944.
The motion is overruled.