These were defensive matters and if appellant desired to avail himself of such defenses or to rely upon the duty of appellee to mitigate the damages as fixed by the contract sued upon, the burden rested upon him to raise such issue or issues by pleading and proof. Phelps v. Connellee, Tex.Com.App., 285 S.W. 1047 and authorities; Stolz v. Wells, Tex.Civ.App., 43 S.W.2d 163, pt. 3 and authorities; Copeland v. Hill, Tex.Civ.App., 126 S.W.2d 567. Having failed to raise any such issue by pleading or evidence, it is our opinion that no legal right of appellant has been prejudiced by reason of the amount of the judgment that was rendered against him. Rule 434, T.R.C.P.; American National Bank of Austin v. Sheppard, Tex.Civ.App., 175 S.W.2d 626, pt. 2, er. ref.; Duke v. Hatcher, Tex.Civ.App., 207 S.W. 575. Therefore, the judgment is affirmed.