On Motion for Rehearing.
PER CURIAM..In the original opinion handed down the following was said:
“A few days after the loan to Kirby, Armstrong on, to wit, January 18, 1923, gave his note to the State Bank as he ha<j promised to do for $21,500 covering the aggregate amount of his indebtedness to that bank. A few days later Kirby indorsed this note as an accommodation to Armstrong.”
There was a clerical error in that statement which is withdrawn and the following is filed as a substitute therefor:
“Two and one half months after the loan to Kirby, Armstrong, on towit: April 18th, 1923, gave- his note to the State Bank, as he promised to do, for Twenty One Thousand Five Hundred Dollars, covering the aggregate amount of his indebtedness to that bank. The note of April 18th, 1923, was taken up and replaced by a second note dated April 27th, 1923, and Kirby indorsed this latter note as an accommodation to Armstrong.”
■ The outstanding facts recited in this corrected statement doubly assure the correctness of the instructed verdict. In Armstrong v. City Nat’l Bank (Tex. Civ. App.) 16 S.W. (2d) 954, the transaction by which the new money was loaned and the bankruptcy debt was revived was one and the same, and gave some color to appellant’s contention that he was illegally forced to renew the old debt in order to obtain the new loan — color which in that case and in Armstrong v. Continental Nat'l Bank (Tex. Civ. App.) 44 S.W.(2d) 1111, was held had no substance.
If those decisions are correct, and we do not question them here, then in this case, where the new money was obtained and the note therefor made, the proceeds thereof spent by appellants, and months later, when no power of any court could have made Armstrong renew the bankruptcy debt, and the pressure of obtaining new money was relieved weeks before, it makes certain that the only moving force which induced appellant Armstrong to sign the revival of the bankruptcy debt was the moral obligation arising from the justice of same.
Furthermore, the corrected statement has ample support in the testimony of plaintiff in error, George W. Armstrong himself, a part of which is as follows:
“I told Mr. Bright that I did not want Mr. Kirby to have to pay my debts from which I had been discharged; that I wanted time to pay them myself. * * *
“I was optimistic about selling my property and probably getting in quite a large income, and if I had to pay taxes and debts too I could not do that. I did want my obligations in such shape that if I sold the property I would have credit for what I had to pay on account of these old debts, and I may have had in mind as one of the reasons — one of the motives which may have actuated me in the m'atter may have been the matter of getting my debts in such shape that they could be so counted. * * *
“I think I did tell them that I would not reinstate any note for any bank which did not help me get on my feet, and those banks which did help me would bé paid in preference to others. They knew when I got discharged from my debts that eventually I would be able to pay.”
Also the following from his letter which was introduced in evidence:: “I chose the plan of borrowing from my creditors deliberately, because I wanted to pay them and wanted to be in a position to offset such payments against income taxes, and not because tha.t was the only way I could get money.”
And the following is stated in briefs filed ih this court for both plaintiffs in error: “All the facts of this case are fully developed on the pleas of plaintiff in error Kirby. There is no occasion therefore to remand this cause for further trial if error has been committed by the court in sustaining the demurrer. ⅞ ⅜ ⅜ ¾⅛ concede that this is a case for instructed verdict because of no conflict in this testimony. But the trial court gave the instructions for the wrong party.”
With the foregoing correction,, we adhere to *909the conclusion reached on original hearing, and the motion for rehearing, which has been duly considered, is overruled.