17 Tex. 658 | Tex. | 1856
It is not perceived on what ground the Court sustained the demurrer to the answer containing matter specially pleaded. It is said it was rightly sustained, because the matters of defence therein contained could have been given in evidence under the general denial. But this is a mistake. Repeated decisions of this Court have settled, beyond question, that new affirmative matter of avoidance or defence, cannot be given in evidence under a general or special traverse, but must be specially pleaded. The answer contained a plea of payment, and of release ; neither of which could be given in evidence under the general denial. The plea of payment avers that the defendant, and his co-promissor, Brooks, had paid all but one hundred and fifty dollars of the debt; and that there remains no more than that sum due upon the note sued on. And the plea of release contains a distinct averment that, in consideration of the payments made, the plaintiff had released the defendant, and the other co-promissors, except Brooks, from further liability on the note. It is not averred that the making of the conveyance by the plaintiff, spoken of, operated a release. If it were, it might be answered, that the plea was insufficient; for that the conveyance could not have that effect. But the averment is, that “ thereupon,” that is,
We are of opinion that the Court erred in sustaining the demurrer to the answer ; for which the judgment must be reversed and the cause remanded.
Reversed and remanded.