Appellant, Glacier Crawford, d/b/a G. Crawford Delivery, appeals from the granting of a summary judgment in favor of appellee, Pullman, Incorporated, Trailmo-bile Division. We rеverse and remand.
Appellee, plaintiff in the court below, brought suit against appellant on a sworn account pursuant to Tex.R.Civ.P. 185. The account was based on two lease agreements providing for the rental by appellant of five pieces of equipment owned by appellee. Appellant’s First Amended Original Answer contained a verified denial which complied substantially with the requirements of Rule 185. It also contained allegations that there had been a failure of consideration and that all payments and credits had not been allowed pursuant to the lease. Appel-lee subsequently filed a motion for summary judgment under Tex.R.Civ.P. 166-A in which it alleged that the verified copies of the lease agreements and an affidavit of its branch manager constituted sufficient summary judgment evidence to establish a pri-ma facie case in its favor. Appellant filed a written response to the motion wherein he asserted that his verified answer set out affirmative defenses to plaintiff’s petition; however, this response did not point out the existence of any fact issues nor did it have attached to it any evidence to support his contentions. Based on the evidence before it, the trial cоurt granted appellee’s motion and entered judgment that defendant was indebted to plaintiff in the liquidated principal amount of $16,164.04 plus interest in the amount of $1,373.94, and $1,000 in reasonаble attorney’s fees. Appellant appeals from that judgment.
Appellant complains in his two points of error that the trial court erred in granting the summary judgment and in finding that no fаct issue existed in this cause. Because Rule 166-A requires a determination of the former before the latter, we will first consider appellant’s second point of error.
In support of his second point of error, appellant argues that the mere raising of an affirmative defense as was done in his amended answer was sufficient to defeаt the motion for summary judgment. Appellant’s reliance on two cases for that proposition is misguided: In
Stevenson
v.
Reese,
Appellant, relying also on
Cloys v. Turbin,
Further, the controverting summary judgment evidence introduced by the *379 non-movant need only be sufficient to raise an issue of fact with respect to the element or elements negated by the mov-ant’s summary judgment evidence; it need not be sufficient to meet the burden of persuasion that the non-movant plaintiff would hаve at trial.608 S.W.2d at 700 . (Emphasis ours)
In the case before us, the motion was filed by plaintiff-appellee. At trial, appellant would have the burden of going forward with the evidence to to prove his affirmative defenses by a preponderance of the evidence. Although his burden to raise a fact issue in support of his response would not have been as grеat, some evidence of the existence of a fact issue was required. None was here presented to the trial court. Because appellant waived his аffirmative defenses by failing to introduce any evidence in their support, we cannot consider those issues on appeal. 1
We next consider, under appellant’s first point of error, whether appellee was entitled to judgment as a matter of law. It is well established that a defendant’s verified denial of the correctness of a plаintiff’s sworn account in the form required by Rule 185 destroys the evidentiary effect of the itemized account attached to the petition and forces the plaintiff to put on proof of his claim.
Rizk v. Financial Guardian Ins. Agency, Inc.,
This suit is based on two lease agreements, copies of which were attached to the original petition and the motion for summary judgment. At the bottom of each of the leases appears the following statement: “I, Phillip J. Alvarez, duly sworn as a notary public do hereby testify that these arе exact duplicates of the originals.” However, reference is made on the front of the leases in two separate places to a reverse side. It is undisputed that a copy of the reverse side was neither attached to the original petition nor introduced in support of the summary judgment. In the second instance, the lease provides as follows: “The terms and conditions set forth above
and on the reverse side hereof
constitute the entire agreement between the parties .... ” We are aware that some contracts contain a clause of this kind to signify that the contract is the complete agreement of the parties so as to guard against a party’s contentions that anothеr oral agreement existed between the parties. This may well be the significance of the above clause in these leases. However, it is not for this court to speculate whether this is in fact, the case or whether the “terms and conditions” are in the nature of conditions precedent to the formation of the contract or the liаbility thereunder. The court in
Texas International Airlines v. Wits Air Freight,
In
Texas International Airlines, supra,
the suit was upon an airbill, the front side of which was introduced as part of the plaintiff’s summary judgment proof. The front side of the airbill contained the recital “Conditions of the Contract appear on the back of the Airbill.” The court, basing its holding on several insurance poliсy cases wherein only the certificate of insurance was introduced and reference was made therein of a group policy, held that it was
*380
not the function of that court or of the trial court to speculate as to the agreement of the parties. The court stated: “When a party sues upon an instrument, and that instrument affirmatively shоws upon its face that it is subject to, and not merely cumulative of, terms and conditions found in another instrument, both must be introduced.”
Notes
. Tex.R.Civ.P. 166-A(c) provides in pertinent part:
Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.