Robert Marley v. R. D. McAnelly, 17 Tex. 658

Wheeler, J. 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, upon the happening of that event, the plaintiff did, in fact, release the defendant from further liability. This is the natural import of the language of the plea. That the matters set up in the answer, if proved, constitute matter of defence, cannot be doubted.

They may not be true in point of fact; if not true, the plaintiff should not have demurred ; for his demurrer admitted their truth, for the purpose of disposing of the issue of law which it raised. That issue having been erroneously decided for the plaintiff, will require a reversal of the judgment; for this Court cannot know that, if permitted, the defendant would not have adduced evidence of the truth of the plea. If the answer had been specially excepted to, it might, perhaps, have been held not sufficiently specific and certain as to dates, and the manner of payment, and of the release.

But it was sufficient on a general demurrer. (Wells v. Fairbank, 5 Tex. R. 582 ; 6 Tex. R. 427 ; Id. 91.) 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.