The opinion
On Motion for Rehearing.
Appellants insist that interveners filed an answer for and in behalf of the defendant bank. The pleas of intervention contained a request for “permission of the court to intervene herein in behalf of themselves and, if it be proper, in behalf of all other stockholders of the hereinafter mentioned First National Bank of Merkel, Tex.” The pleas also contained exceptions to plaintiffs’ petition, challenging their right to recover against the bank, also special answers, denying all the material allegations contained in the plaintiffs’ petition, and the judgment rendered recites that “the defendant, the First National Bank of Merkel, appearing by interveners in this cause.”
Appellants insist further that the evidence in the case did not support our finding that the purpose of plaintiff Burroughs in joining the other plaintiffs in advancing the money necessary to pay off and discharge the $10,-000 note owing to the Commonwealth National Bank of Dallas was to promote the consummation of the sale to the Southern National Bank of Merkel of the' assets of the' First National Bank of Merkel. While the evidence tends to support that conclusion, yet, upon a further examination: of the record,, we cannot say that the conclusion was established beyond controversy. However, it was proven beyond controversy that the money so advanced by the plaintiffs to the president and liquidating agent of the defendant bank was borrowed by plaintiffs from the Stock Yards National Bank of Ft. Worth, and appellants cite testimony from the statement of facts to show that Burroughs signed that note merely as an accommodation for the other plaintiffs. There is no evidence in the record to show who paid off and discharged that note fo-che Stock Yards National Bank, and, in the absence of testimony to the contrary, it could reasonably be presumed that the principals, and not the accommodation surety, discharged it. If they discharged it, then the entire-cause of action for subrogation would be in the coplaintiffs of Burroughs, and, if Burroughs was permitted to share with them in the recovery, it would be an error of which appellants could not complain. Further *877 more, if Burroughs did assist in discharging the note to the Stock Yards National Bank, we are of the opinion that such advancement by him, at the special instance and request of Barker, who was the liquidating agent and president of the bank, and clearly for the benefit of the bank and all its stockholders, was sufficient of itself to give him the right of subrogation equally with his coplaintiffs. 6 Pom. Eq. Juris. § 921 (2 Pom. Equitable Remedies).
The motion is overruled.