ON PETITION FOR REHEARING. The only question made in this petition for a rehearing, which was not made and considered on the original hearing, is that the complainant took other security for its debt and thereby waived its lien on the premises 1707 York avenue. This question was not referred to on the original hearing in this court either in oral argument or in the brief filed. It was therefore not considered by the court.
On behalf of the complainants, it is contended that these defendants cannot be heard to set up this defense now in this court because *Page 89 it was not made in the lower court. Counsel for the defendants admits that the defense was not set up in the answer, but says it was not known until the proof was taken and that then it was made in argument and brief in the lower court. There is nothing in the record to show when the facts sought to be relied on now were first discovered by these defendants nor that the defense was insisted on in any way before the lower court. However, confining ourselves to the failure to set up the defense in the answer, Mr. Gibson says:
"The defendant in answering must be careful to set forth, clearly, any and all special defenses he intends to rely on, whether such special defenses be matters of law, or matters of fact. If he intends to rely on (1) the want of proper parties, (2) on the statute of frauds, (3) the statute of limitations, (4) the defense or innocent purchaser, (5) nonpartnership with a co-defendant, (6) failure, or illegality, of consideration, (7) usury, (8) payment, (9) satisfaction, (10) release, (11) former adjudication, (12) nonperformance of condition precedent, (13) alteration of instrument sued on, (14) tender, (15) higher security taken, (16) merger, (17) an account stated, (18) title paramount, (19) an award, (20) a compromise, (21) infancy, (22) coverture, (23) drunkenness, (24) mental unsoundness, (25) fraud, (26) duress, (27) estoppel, (28) none est factum, (29) nonpartnership of complainants, (30) set-off, (31) recoupment, or the like, he must set up these defenses in a clear and unambiguous manner, to the end that the complainant may be apprised thereof; for he cannot avail himself of any matter in defense which is not stated in his answer, even though it should appear in the evidence.
"It would be a gross fraud upon the complainant to allow a defendant to set up one defense in his answer, and to make out and reply upon an entirely different defense in his proof. If such a practice were tolerated, instead of a pleading sub-serving the purpose of notifying the adversary of what the pleader intended to prove, it would be a mere ruse to enable him to mislead and deceive his adversary as to his real cause of action, or real defense. And where a defendant has made out a case by proof, different from the one set up in his answer, he should not be allowed to amend his answer so as to conform to the proof, without being onerated with the costs of all the proof taken in the cause. The proofs must be conformed to the pleadings, and it is a reversal of both logic and law to allow a party to conform his pleadings to his proofs. Gibson suits in chancery, sec. 358.)"
In addition to this, it is contended for complainant that the proof relied on in the petition for a rehearing does not support the contention of petitioners as it does not show that Cook Co. was given *Page 90 a trade acceptance to cover this particular account here sued on. The first excerpt from the testimony of W.L. Wilcoxon in the petition for rehearing is in part as follows:
"Q. Did the West Memphis Lumber Company not at one time settle this account sued on in this case? A. Yes.
"Q. How did it settle it? A. By a trade acceptance signed by West Memphis Lumber Company by J.D. Brown.
"Q. Those trade acceptances were taken by A.J. Cook Co., were they not, in complete settlement? A. I do not know whether they were in complete settlement or not. It was during my absence in Mississippi."
The next excerpt from testimony of same witness contains this:
"Q. You say that West Memphis Lumber Company gave Mr. Cook some trade acceptance? A. Yes.
"Q. Were they in any way marked for this particular job? A. I could not tell you."
And in the third excerpt from Wilcoxon's testimony we find this:
"Q. You know the amount of the trade acceptance that West Memphis Lumber Company gave Cook trade acceptance for the entire amount of each job? A. I know they paid Cook money all along.
"Q. You mean West Memphis Lumber Company? A. Yes."
In the quotation set out from Cook's testimony he says:
"A. I accepted trade acceptances from time to time from the West Memphis Lumber Company to apply on their general account.
"Q. Now I will ask you, Mr. Cook, to state whether or not —
"Mr. Swift: Did you say to apply on general account?
"The Witness: Yes."
We think both contentions of the complainant are well taken. The defense was one which should have been set up in the answer. If discovered too late for the original answer this would have been good ground to ask leave to amend. But if the waiver had been properly pleaded we do not think the proof would support it. Wilcoxson does not know whether the acceptances were taken in complete settlement or not, and he does not know whether they were given on this particular job. And when asked a question which gave him a good opportunity to answer as to the amount of said trade acceptances, he declines to state and simply says, "I know they paid Cook money all along." This does not show any such acceptance of security as to the specific amount sued on in this case as would amount to a waiver of the specific lien sought to be enforced. A waiver as to any other part of the indebtedness of complainant would not be a waiver of the lien as to particular indebtedness made the basis of this suit. Electric Light Co. v. Gas Co., 99 Tenn. 371. *Page 91
There is another objection which might well be urged to this defense being made at this time in this court even conceding that it could be made without pleading it in the lower court, and that is, the fact relied on is not found by the Chancellor and there is no request for further finding of facts. If a waiver is to be predicated on facts not pleaded but brought out in proof the Chancellor should have been asked to pass on the facts necessary to support the contention.
The petition for rehearing is denied.
Owen, J., and Hughes, Special J., concur.