On Motion for Rehearing. We have concluded that Teagarden is entitled to recover the deposit. Freeman was wholly unable to advance the amount of the deposit, or any part of it, and Teagarden, as a matter purely of accommodation, advanced it for him, by giving his note to the bank for the amount required. Freeman had no credit with the bank, but Teagarden had. So, the latter consented to the use of his credit, and the bank set aside the fund as the required deposit. Teagarden advanced the money upon the express condition that the proposed sellers of the land furnish to the bank abstracts showing good title and *Page 116 proper conveyance of the land to the proposed purchaser, within 10 days. In lending his credit he had the undoubted right to protect it with any condition he saw fit to impose, and he exercised this right by imposing the conditions named. The transaction thus took the form of a special contract between the bank and Teagarden, whereby the bank became obligated to return the deposit to Teagarden in the event of the failure of Young to deposit the required abstracts and deeds with the bank within 10 days; on the other hand, had Young furnished the deeds and abstracts within that period, Teagarden's right to the return of the deposit would have ceased, and the bank would have become obligated to pay over the deposit to Young. It being conceded that Young did not comply with these conditions within the stipulated period, Teagarden's right to the return of the deposit was fixed.
It did not matter to Teagarden or the bank that Freeman was under obligation to Young to deposit the escrow fund subject to appropriation to Young at any time within 30 days upon his compliance with his obligation to furnish the deeds within that period; for no matter how closely related were the transactions, the Teagarden-Bank contract was special in its nature, and the rights and obligations of the parties thereto were enforceable according to its terms, without reference to the Freeman-Young contracts, in so far as the provisions of the two contracts were in conflict. The period of the option provided for in the two contracts conflicted, as a matter of course, and while those provisions coordinated and were enforceable as one for the period of 10 days, they diverged at the expiration of 10 days, when the rights of the respective parties became enforceable according only to the terms of their respective contracts. Hence, when the 10-day period lapsed without event, Teagarden's right to withdraw the deposit was fixed, and Young could no longer assert an interest in it.
Moreover, it appears that Young was promptly advised of the deposit made, and of its purposes, and that he equally as promptly repudiated it, refusing to proceed with the negotiations, thereby cutting himself off from any rights thereunder. He never did tender performance to Freeman, in accordance with his obligations, and never earned the deposit in controversy. As a matter of fact, he was acting more as an agent of Sartwell than for himself, while Freeman was acting as an agent of Watson, the proposed purchaser. Both principals appear to have been so exacting that their agents could not satisfy them, and neither of them, nor their agents, have shown themselves entitled to any relief in this case.
We conclude that our original opinion and judgment correctly disposed of the appeal, and that opinion will be reinstated. Accordingly, the judgment entered herein on December 22, 1928, will be set aside, the opinion thereon withdrawn, and judgment will now be entered that appellee W. B. Teagarden do have and recover of the City National Bank the sum of $500 deposited with it by the said Teagarden; and, further, that appellee Young recover nothing in this suit against either of said parties, W. B. Teagarden, the City National Bank, or J. D. Freeman. It is further ordered that appellee John Young pay all costs of this and the trial court.