
    WORLD’S SPECIAL FILMS CORPORATION v. FICHTENBERG.
    (No. 5454.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 28, 1915.
    Rehearing Denied May 26, 1915.)
    1. Damages <@=>157— Issues — Breach oe Contract — Denial—Scope oe.
    New affirmative matter of defense cannot be brought in by a general denial; hence, in an action for breach of contract, defendant, who did not specially plead it, cannot urge that plaintiff did not attempt to minimize his damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 429-488, 440, 447, 449-453; Dec. Dig. <@=>157.]
    2. Trial <@=>251 — Instructions—Pleading.
    An issue not raised by the pleading should not be submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. <@=>25.1.]
    3. Trial <@=>253 — Instructions—Evidence.
    An issue clearly raised by the evidence should be submitted to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. <@=3253.]
    4. Trial <@=>260 — Instructions.
    Charges covered by charges given are properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <@=>260.]
    Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
    Action by H. Ficlitenberg against the World’s Special Filins Corporation. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Hunt, Myer & Teagle and Rodman S. Cosby, all of Houston, for appellant. B. F. Louis, of Houston, for appellee.
   CARL, J.

Appellee, H. Fichtenberg, doing business as Isis Theater, sued appellant for damages for breaching a contract whereby appellant agreed to furnish appellee a film for a special feature picture known as “Pro-tea,” to be run three days beginning November 24, 1913, in appellee’s theater in Houston, and recovered $229. It was alleged that appellee was to receive $135 of each day’s proceeds, and the excess over and above that amount was to be divided equally between the parties. On November 18th appellant advised appellee that the contract was canceled, and it is alleged that appellee had gone to expense in advertising the special feature show; that appellant had knowledge that appéllee only used “first run” pictures, because it had direct notice of that fact, and also by reason of the universal custom of ap-pellee to use only first run pictures, of which custom, it was claimed, appellant knew. Thd suit was for $429.24, being the amount ap-pellee would have received had the film “Pro-tea” been delivered and exhibited, based on the number of adults and children who actually attended the theater during the three days, and $300 for alleged loss which appel-lee suffered by reason of the loss of additional patronage which he would have secured by virtue of additional advertising. The answer was a denial, paragraph by paragraph; no special defense being pleaded.

The first assignment of error complains of the action of the trial court in refusing to permit the witness Sanford to testify as to whether, in his opinion, the plaintiff could have procured another special feature film along the same general lines as the film “Pro-tea” if he had made an effort to do so. As a proposition, appellant submits that it was the duty of appellee to minimize the damage arising from the breach of the contract as far as he could by getting and using other special films along the same general lines as “Protea.”

We have called attention to the fact that the answer does not set out any affirmative plea of matters in the nature of avoidance. And while under the answer as made, which is equivalent to a general denial under the old practice, any evidence could he introduced which would defeat the action for damages, or which would tend to show that appellee had not been damaged as alleged, testimony would not be admissible tending to support a theory avoiding the action unless that matter should be pleaded. In this character of case appellant is in the attitude of saying: “It is true the contract has been breached, and you have been damaged; but you cannot recover because of your own contributory negligence in failing to at least attempt to get other films. Because of your negligence this company is not liable.”

“It is well settled by repeated decisions of the Texas courts that new affirmative matter of avoidance or defense cannot be given in evidence under a general or special traverse, but must be specially pleaded.” Willis & Bro. v. Hudson, 63 Tex. 678; Smothers v. Field, etc., Co., 65.Tex. 435; Winn v. Gilmer, 81 Tex. 345, 16 S. W. 1058; Farmers’, etc., Nat. Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966.

If the defendant is satisfied to simply deny the case as pleaded and seek to disprove same, he may rest upon his denial of the allegations made; but when he relies on any special matter of defense to defeat the cause of action he should allege and prove the same. When the plaintiff makes out a pri-ma facie case, the burden of establishing special defenses which would defeat such prima facie case shifts to the defendant so relying on such special defenses, and, unless he has pleaded these defenses, he certainly cannot prove same. The first assignment is overruled. Moody & Co. v. Rowland, 100 Tex. 363, 99 S. W. 1112; Murchison v. Mansur-Tibbetts Implement Co., 37 S. W. 605. We especially refer to the case of Moody & Co. v. Rowland, supra, as being a recent clear-cut decision by the Supreme Court.

There being no pleading to support the evidence upon the matters above referred to, it was not error for the court to refuse to charge thereon, and the second and third assignments are overruled.

The evidence clearly raised the issue as to whether appellant was advised of appellee’s custom never to use anything hut first run films, and the court did not err in charging thereon. The fourth and fifth assignments are overruled.

The matters complained of in the sixth assignment by reason of the failure of the court to give defendant’s specially requested charge No. 2 were covered in the court’s main charge, and it was not necessary to give same. This assignment is overruled.

We have examined the other assignments of error, and, finding them without merit, they are overruled.

The judgment is affirmed. 
      <SE5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     