[On Motion for Rehearing,
ROBERTS, J.Appellant has - filed a motion for rehearing, and presents one point only which requires further discussion. He insists th^t the,court, in passing upon the question raised in appellant’s brief that the oral agreement between appellant and. appellee was an undertaking to answer for the debt,, default, or miscarriage of McBride and was within the statute of frauds, failed to consider the findings made - by the court; that such findings show appellant’s-promise was a collateral undertaking. The court found, among other things:
“Defendant at said time agreed orally to protect plaintiff in his commission on the sale of the McBride ranch if he (plaiptiff) made a sale thereof to Berry Cox.”
This, appellant argues, is a direct finding that the oral agreement, was a -collateral undertaking, and it must be conceded that the finding, standing alone, lends support to appellant’s contention. The findings, however, are to-be- construed together, and in other findings made by the court the situation of the parties was found and all the facts in the case fully set forth.
[4] The question as to whether a promise is a direct or collateral undertaking is not solely dependent upon the words used, but is to be ascertained from the words used in making the promise, the situation of the parties, and all the circumstances surrounding the transaction. The character of the promise does not depend wholly upon the form of expression, but largely upon the situation of the , parties, and the question always is what the parties actually understood by the language, whether they understood it to be a collateral or a direct promise. Davis v. Patrick, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826. In a note to the case of Mankin v. Jones, 15 L. R. A. (N. S.) 214, the author says:
“This intention should' he gathered from the entire transaction, and will control regardless of the language used in creating the obligation.” ■
In the present case the findings made by the court, relied upon by appellant, were not justified by the language used by .either party, as shown by the testimony. Appellee testified that appellant said that .he would pay the commission, while appellant’s testimony was to the effect that he would see that the commission was paid. The court, after setting forth its findings and all the material facts relative to the situation of the parties, gave judgment-for appellee, which could only have been done upon the assumption that the promise was a direct undertaking. We think the surrounding facts and circumstances justified the court in concluding that the promise to pay was a direct undertaking, for which reason the former opinion will be adhered to, and the motion for rehearing will be denied.
Hanna, C. J., and PARKER, J. concur.