We conclude that the admission stating that Bellair had received all offsets due it precludes Bellair from arguing otherwise. See id.; Roby Industries, Inc. v. Maxwell Electronics Corp., 409 S.W.2d 559 (Tex.Civ.App. — Dallas 1966, writ ref'd n.r.e.); Young v. Archer Motor Co., 33 S.W.2d 752 (Tex.Civ.App. — Fort Worth 1930, no writ). Thus, Aviall met its initial burden under its motion.
Indeed, it seems clear from its quoted averments that the amended petition, which alone applies, asserted a cause of action that is not so barred, instead of showing on its face that it was, as the rule of law requires. 28 Tex.Jur., page 292; Robb v. San Antonio St. Ry., 82 Tex. 392, 18 S.W. 707; Lewis v. Alexander, 51 Tex. 578; Kruegel v. Porter, Tex. Civ. App. 136 S.W. 801, affirmed 106 Tex. 29, 155 S.W. 174; Young v. Archer Motor Co., Tex. Civ. App. 33 S.W.2d 752. See also Texas Rules of Civil Procedure, Nos. 62, 63, and 65, which last named one provides that, in circumstances like those here existing, the amended petition is substituted for the original.
We are unable to say from the face of the pleadings that plaintiff's cause of action for the alleged breach to procure such credits on the account arose before December 22, 1934. Young v. Archer Motor Co., Tex.Civ.App. 33 S.W.2d 752. As having some analogy, but not as being controlling, we cite Matlock v. Gulf, C. S. F. Ry. Co., Tex.Civ.App. 70 S.W.2d 279; Johnson v. Sugg, Tex.Com.App., 291 S.W. 857. Our decision is that, from the face of plaintiff's pleading, it does not certainly appear that plaintiff's cause of action in its entirety is barred by the two-year statute of limitations.
It is a well-settled rule of decisions of this state that as against a general demurrer every reasonable intendment will be indulged to show sufficiency for the relief sought. Stovall v. Texas Co., Tex. Civ. App. 262 S.W. 152; Young v. Archer Motor Co., Tex. Civ. App. 33 S.W.2d 752; Davis v. Mrs. Baird's Bakery, Tex. Civ. App. 30 S.W.2d 809; Fuqua v. Mapes, Tex.Com.App., 57 S.W.2d 97; Garza v. Kenedy, Tex.Com.App., 299 S.W. 231, 233; Hill v. Preston, 119 Tex. 522, 34 S.W.2d 780, 783; Fooshee Hungerford v. City of Victoria, Tex. Civ. App. 54 S.W.2d 220, 223, writ denied; Cox, Inc., v. Humble Oil Refining Co., Tex.Com.App., 16 S.W.2d 285, 286. In Garza v. Kenedy, supra, this was said in opinion by Judge Short for the Commission of Appeals: "In testing the sufficiency of a petition by a general demurrer, much liberality is indulged by the courts, even though much of the pleading is made up of what is generally termed `conclusions of the pleader,' drawn from the facts not revealed.
The following decisions are authority for holding that under circumstances such as are here revealed the counterclaim should have been entertained as being incident to and growing out of appellee's cause of action. Thorndale Mercantile Co. v. Evens Lee (Tex.Civ.App.) 146 S.W. 1053; Gillispie v. Ambrose (Tex.Civ.App.) 161 S.W. 937; Maury-Cole Co. v. Lockhart Grocery Co. (Tex.Civ.App.) 173 S.W. 262; Swift v. Roach (Tex.Civ.App.) 266 S.W. 846; Young v. Archer Motor Co. (Tex.Civ.App.) 33 S.W.2d 752. Appellant's contention that the only evidence as to the justness of the account was from interested witnesses, and that, therefore, the question was one for the jury, is not tenable.
The contract pleaded, by the terms of which appellant alleges that, as a part of the consideration for the purchase and sale of the equipment and good will, appellees agreed not to again engage in such business, was valid; Gates v. Hooper, 90 Tex. 563, 39 S.W. 1079; Foxworth-Galbraith Lumber Co. v. Turner et al., 121 Tex. 177, 46 S.W.2d 663, 87 A.L.R. 323, and would not be unenforceable because appellant had defaulted in some installment of the note on the date such installment was due. Latham v. Butler (Tex.Civ.App.) 17 S.W.2d 1083. Under the law appellant was entitled to plead as a set-off his damages, since under his allegations such damage arose out of and was incident to appellees' cause of action. Article 2017, R.C.S. 1925; Hansen et al. v. Yturria (Tex.Civ.App.) 48 S.W. 795; Young v. Archer Motor Co. (Tex.Civ.App.) 33 S.W.2d 752; Parma v. First National Bank (Tex.Civ.App.) 22 S.W.2d 957. The judgment is reversed and the cause remanded.