On Motion of Defendant in Error for Rehearing.
In the opinion disposing of the appeal it was stated that according to Barnes’ contention he was to execute other notes to take the place of those aggregating $660 representing a part of the purchase price of the Reo automobile purchased by him of the car company April 26, 1924, and was to secure the new notes by a mortgage on the Reo automobile he claimed he afterwards purchased of the car company. As pointed out' in the motion, the statement was incorrect so far as it was that Barnes was to execute other notes in lieu of those he had already made. It appears from the record that his contention was that he was to secure the notes he ¡had already made by a mortgage on the automobile he claimed the car company sold to him to take the plaeé of the one it sold him April 26, 1924.
But we do not think a correction of the mistake calls for a change in the disposition made of the appeal. The theory on which this court held that the trial court erred when he excluded copies of the car company’s petition, Barnes’ answer, and the judgment in the suit in Dallas county was not that the judgment in that suit conclusively established that Barnes was not entitled to recover as he did in his cross-action, but that the judgment, when read in connection with the pleading on which it was based, was evidence tending to support the car company’s contention that it did not sell the car in controversy to Barnes as the latter claimed it did.
In the suit in. Dallas county Barnes not only denied the existence of a right in the car company to recover on the notes, but also denied the existence of a right in that company to foreclose the mortgage to secure the notes' given on the automobile purchased April 26, 1924. We see no reason why the jury should not have been allowed to consider such denial and the judgment establishing the fact to be to the contrary thereof as evidence tending to prove the car company’s contention that the notes and mortgage sued upon in the court in Dallas county evidenced the only contract it ever had with Barnes. The ear company was not entitled to the foreclosure it Obtained in that suit if it had agreed to rescind the contract evidenced by the mortgage and to take a mortgage on the automobile in controversy as security for the notes. The judgment in that suit, for anything appearing to the contrary in the record before us, was acquiesced in by Barnes, and. had the excluded evidence been admitted we think the jury would have had a right to regard such acquiescence as an admission by Barnes that the contract evidenced by the mortgage foreclosed had not been superseded by another contract.
Another contention urged by Barnes in support of the ruling of the trial court is that to entitle the car company to prove what it offered to prove about its suit against him (Barnes) in Dallas county it must have pleaded such matters, and, Barnes asserts, it did not do that. The contention is based on the fact that the court sustained exceptions to allegations setting up such matters contained in the car company’s second supplemental petition, and ignores the fact that such matters were set up in the ear company’s first supplemental petition which was before the court unaffected by any rulings on exceptions thereto. Rule 10 for government of district and county courts; Hicks v. Stewart, 53 Tex. Civ. App. 401, 118 S. W. 206. It seems, therefore, if other pleadings than the general denial in the car company’s petitions were indispensable to a right in the car company to make the proof it offered to make, it had them in its first supplemental petition.
The motion is overruled.