(dissenting). — There ought to have been a non-suit as soon as it developed that the parties had a contract of suretyship between them. If respondent was a bondsman for Jordan, and Jordan abandoned the building, leaving bills unpaid, it became respondent’s obligation to pay them off before he could demand any unpaid contract money from appellant. Therefore, being under such an obligation, it is wholly immaterial whether appellant prom, ised to repay or not, the promise was void, and what may *549or may not have been the facts makes no difference. The plaintiff ought to have been relegated to a suit based upon his rights under the bond. As it is, he has now been allowed to repudiate the bond pro tanto, without any consideration of its merits as a binding obligation.