The opinion
On Motion for Rehearing.
[3, 4] This court proceeded in its former opinion on the mistaken hypothesis that the charge had been objected to in the lower court, or, if it had not been objected to, that the error was fundamental in presenting the issue as to the existence of the contract to the jury when such existence had been admitted in the answer. Neither of these hypotheses is sustained by the record. Appel-lee pleaded a general denial, and any admissions thereafter pleaded in the answer would not lift the burden from appellant of proving his case, which had been generally denied. Bauman v. Chambers, 91 Tex. 108 , 41 S. W. 471 ; Railway v. De Walt, 96 Tex. 121 , 70 S. W. 531 , 97 Am. St. Rep. 877 ; Ins. Co. v. Sadau, 159 S. W. 137 ; Gordon v. Ratliff, 169 S. W. 372 . It follows that the error was not fundamental, and, not being called to the notice of the court by any objection to it, it cannot be considered. There is no merit in the other matters presented in the brief. It appears therefore that our former decision was erroneous, and it is set aside, and the judgment is affirmed.