On Motion for Rehearing. Appellee urges, among other things in its motion, that upon our sustaining its position of a defect in appellant's pleading and proof as to tender, this cause should be affirmed, and not remanded to enable plaintiff to correct such matters; asserting the record was otherwise free of error. The majority opinion, above, decided that the trial court erred in granting a peremptory instruction against plaintiff upon the main issue discussed, and it was unanimously our conclusion that a tender back was a condition precedent to a recovery, without which the particular pleading was lacking in the material elements of a cause of action. In such a situation, a general demurrer should have been sustained to plaintiff's petition; it being well settled that, where a litigant is deprived of his right to amend or cure defects of pleading by error of the trial court in overruling a general demurrer, the cause should be remanded so that such party, if he can, may pursue the valuable course of amendment. Wichita County v. Tittle, Tex.Com.App., 41 S.W.2d 11; Grand Court of Texas v. Smith, Tex. Civ. App. Dallas Court, 39 S.W.2d 187; Shell Petroleum Corporation v. Burnett, Tex. Civ. App. 91 S.W.2d 1091. Upon full consideration of said motion for rehearing and propositions therein raised, it is, in all respects, overruled.
Overruled.