Appellant insists the trial court erred when he instructed the jury to return a verdict in appellee's favor, because, he says, there was evidence warranting findings (1) that he did not in fact purchase the land of Andrews, but merely took the title thereto for convenience in conveying same to a purchaser thereof if Andrews found one before January 1, 1921; (2) that his assumption of the payment of the notes was not to be effective if Andrews found such a purchaser before said January 1, 1921, and that Andrews did find such a purchaser before said date; (3) that the consideration for his assumption of the note failed; and (4) that the instrument purporting to be an absolute deed conveying the land to him was intended to operate as a mortgage merely, to secure the payment of $600 he loaned to Andrews, and was void because the land was then being occupied and used by Andrews and his family as their homestead.
We do not think such findings, nor any of them, were warranted by the evidence, but, nevertheless, think the court erred when he instructed the jury as stated. While the contract whereby appellant assumed the payment of the notes was between appellant and Andrews alone, it was for the benefit of holders of notes Andrews made to Collier. McCown v. Schrimpf,21 Tex. 22, 73 Am.Dec. 221; Hill v. Hoeldtke, 104 Tex. 594, 142 S.W. 871, 40 L.R.A. (N. S.) 672; Roberts v. Abney (Tex.Civ.App.) 189 S.W. 1101; Allen v. Traylor (Tex.Com.App.) 212 S.W. 945; note to Hamilton v. Wheeling Public Service Co., 21 A.L.R. 454, 460. But it was a benefit such a holder was not bound to accept (Edwards v. Beals [Tex.Com.App.] 271 S.W. 887; Morrison v. Barry, 10 Tex. Civ. App. 22, 30 S.W. 376; Huffman v. Mortgage Co., 13 Tex. Civ. App. 169, 36 S.W. 306), and which, we think, appellee as the holder of five of the notes should be held to have waived, if she knew pending the *Page 161 suit appellant brought thereon for her that he had assumed the payment of the notes. Appellee as a witness testified that she did not know of such assumption by appellant until after the trial of said suit. According to the rule which seems to be established by decisions in this state, the fact that appellee's testimony was not contradicted by the testimony of any other witness did not warrant the instruction to the jury complained of. "It is settled law in Texas," said the Commission of Appeals in Mills v. Mills, 228 S.W. 919 (Id. [Tex. Sup.] 231 S.W. 697), "that it matters not how positive and uncontradicted the testimony of an interested party may be, the question of his credibility must be submitted to the jury." And see Jopling v. Caldwell (Tex.Civ.App.) 292 S.W. 958, where the court said, "A verdict cannot be instructed by the court based upon the uncontradicted testimony of an interested witness," and Jarecki Mfg. Co. v. Hinds (Tex.Civ.App.) 295 S.W. 274.
Contentions not disposed of by what has been said are overruled.
The judgment is reversed, and the cause is remanded to the court below for a new trial.