¶1ON MOTION FOR REHEARING.
¶2Our attention has been called to the fact that we overlooked an allegation in the petition that “there is due him thereon the sum of $250,” etc., and that such allegation in connection with defendant’s general denial was the ground upon which the trial judge placed his ruling, admitting proof of payments notwithstanding they were not set up in the answer.
¶3It is insisted that this allegation by plaintiff, when met by a general denial, made an issue as to all payments claimed. In other words, the allegation that there was due plaintiff $250, though unnecessary to the proper statement of plaintiff ’ s case, yet when met by a general denial would let in testimony, such as payments, going to show that such sum was not due him. There are authorities which sustain this contention. McElwell v. Hutchinson, 10 S. C. 436; Marley v. Smith, 4 Kan. 183, and the case of Bogie v. Nolan, 96 *671Mo. 85, lend some color to the position. But the late case of Hudson v. Railroad, 101 Mo. 13, appears to be directly applicable to the point in dispute and settles it against the plaintiff. In that case, as well as in Karle v. Railroad, 55 Mo. 482, the allegation that the plaintiff was injured without any negligence or fault on his part was met by a general denial. Such allegation was unnecessary, as is the allegation in this case that there was due plaintiff the amount of the note. The contention there was, as it is here, that such allegation in the petition when followed by a general denial raised the issue of a contributory negligence. But the court decided that, by merely answering the allegation in the plaintiff’s petition, the defendant can. try only such questions of fact as are necessary to sustain the plaintiff ’ s case.
¶4II. The admission of testimony showing an agreement that the rent of the cheese factory was to be applied as a payment on the note would have been improper, though the court’s theory as to the pleadings had been correct; for in this case the rent of the cheese factory is specially set up by way of “cross-petition” as a subsisting debt due defendant, and appears to be brought in in the nature of a set-off.
¶5The motion is overruled.