The opinion
On Motion for Rehearing.
Counsel for appellant presents a motion for rehearing, alleging error to the overruling of the numerous assignments contained in his brief, and further urges with much force and plausibility that our conclusion on the issue of the statute of frauds is erroneous and in conflict with the numerous decisions cited, including Williams v. City National Bank, 166 S. W. 130 , and Porter v. Norman, 136 S. W. 1173 , both by this court, and which it is suggested we must have overlooked or intended to overrule without discussion “on account of sentimental feeling for its offspring.” We regret that the able counsel so intimating has done himself the ethical and professional injustice of entertaining and expressing the thought embodied in the words above quoted. He insists that the case before us cannot be distinguished from those referred to and other cases he cites. But on original hearing we in fact considered our own cases as well as many others, and concluded, however erroneously, that they were distinguishable. And undertaking to discuss and distinguish all of the cases on the subject would be unprofitable and hopeless, for it must he conceded that they are not to be easily reconciled. But we will take the time to note that in the Williams Case, above, it appeared, and was distinctly so stated in the opinion, that Williams’ promise “was conditional on the failure of Cowan Bros, (the original or promising debtors) to pay and therefore was collateral.” The evidence showed “that the only promise Williams made was that he would pay the account if Cowan Bros, did not so do.” In the Porter v. Norman Case, supra, we reverse the judgment below on the ground, that the court’s charge authorized the verdict against Porter even though he did no more, as he-testified in effect, than orally agree to guarantee or secure payments for which others were primarily bound. The ease of Brown v. F. & M. Bank, 88 Tex. 350 , 31 S. W. 285 , 33 L. R. A. 359, also urged, will disclose upon a careful reading that the oral promise of Brown, held to be within the statute, contemplated first a resort to and failure of the promising obligor. In other words, the promise was not absolute but clearly collateral. Brown in promising received no profit nor served any purpose of his own other than to favor a relative. Nor does it appear that Brown’s promise was supported by a consideration, a necessary element in every binding contract. It is also to be noted that the decision was against Brown on a different ground and but brief notice given the statute of frauds. We submit that the cases mentioned are easily distinguishable from the one before us. It may be true, and doubtless is true, that cases may be found, and are perhaps cited, that are not easily distinguishable or even in conflict; but it is a well-established doctrine that cases arising under the statute of frauds are determinable by the particular circumstances of the case, and in the one now before us we originally concluded, and yet think, that the circumstances warrant the conclusion reached by the court below that appellant’s promise was substantially a direct one and not collateral to the obligation resting upon the firm of Moore & Oo. It is to be borne in mind that appellant’s buildings at the time of his promise were unfinished; that he desired their completion for business purposes; that appellee had positively refused to furnish Moore & Oo. the necessary material; that thereupon appellant upon a conference with the agent of the appellee company promised to pay for such additional material as he needed. The promise to so do, regardless of the form of the words, which are not necessarily controlling, as we pointed out in our original opinion, was apparently direct, absolute, and not collateral. At least, we think the evidence warranted such a conclusion. Thereafter the account for the material furnished was presented to appellant alone for payment. There was evidence that appellant acknowledged liability thereon; that no further demand was again made against Moore & Co., although such company was not formally released. The evidence does not disclose that appellant could as readily and as advantageously procure the necessary material from others at the time and place. Hence we originally concluded, and are yet of the opinion, that the verdict, evidence, and judgment warranted the conclusion that must be imputed to the proceedings in the trial court that appellant’s promise was upon a sufficient consideration, was original and absolute, and not collateral and within the statute of frauds, and such conclusion, we think, is not to be limited merely to the additional material received by appellant after his promise. We do not think the promise is so separable or was -so understood by either party thereto at the time. The inclusion of the past indebtedness of Moore & Co. was but collateral to and an incident of the principal promise in effectuating the purpose and benefit appellant had in view. It was but a factor — a part- — an element of the contract and consideration advanced by appellant for .the undertaking of the appellee company to forthwith advance the necessary building material. If we are to consider, as we think *681 must be done, all reasonable inferences to be drawn from the verdict and from the evidence most favorable to the appellee company, it may. be further said that there is nothing to show that the appellee company would have waived its right of weekly payment under the contract with Moore & Co. and furnished appellant the requisite building material upon credit as it did, in the absence of an understanding at the time that appellant was to pay not only for the material to be furnished, but also that they had already furnished. This perhaps appears the more reasonable in that there was evidence tending to show that appellant at the time stated that he was indebted to Moore & Co. in a sum sufficient to meet the past-due indebtedness, and appellee omitted to take steps to fix a materialman’s lien.
Without further discussion, however, the motion for rehearing will be overruled.