(concurring in part and in part dissenting).
On the original submission of this cause I was of the opinion that the changes in the contract made by Knutson on July 27th, under his oral agreement with Metallic, particularly the changes in the terms of payment,1 would, nothing else appearing, have effected a release of the surety. I thought though that the surety’s letter of July 21st, denying liability, was in effect an anticipatory breach of its agreement which I incorrectly assumed was an agreement not merely of indemnity but guaranteeing performance, and therefore a release of Knutson from further compliance with the terms of the bond, and so thinking, voted for reversal. Appellee’s motion for rehearing points out that its bond was of indemnity only and was not an obligation to guarantee performance of the contract or to perform the work if the contractor defaulted, Employers’ Liability Assur. Corp. v. Trane Co., Tex.Com.App., 163 S.W.2d 398. It has convinced me that the July 21st letter had therefore no effect upon the contract, none to change the rights and obligations of Knutson and the surety thereunder, and that Knutson and the surety *201remained bound to each other after the letter, to the same extent and with the same consequences as before. Cf. McKnight v. Lange Mfg. Co., Tex.Civ.App., 155 S.W. 977; Standard Accident Ins. Co. v. Blythe, 130 Tex. 201, 107 S.W. (2d) 880; United States v. Freel, 186 U.S. 309, 22 S.Ct. 875, 46 L.Ed. 1177; Massachusetts Bonding & Ins. Co. v. Davis, Tex.Civ.App., 274 S.W. 230, that our judgment of reversal as to the surety was wrong and that its motion for rehearing should be granted and the judgment affirmed as to it. While therefore, concurring in the order denying appellant’s motion for rehearing, I dissent from the overruling of appellee surety’s motion.
Fort Worth Independent School District v. Ætna Casualty & Surety Co., 5 Cir., 48 F.2d 1, 77 A.L.R. 222; Wright v. McAdams Lumber Co., Tex.Com.App., 234 S.W. 878; Ætna Casualty & Surety Co. v. Robertson, Tex.Civ.App., 3 S.W. 2d 895; Ætna Casualty & Surety Co. v. Russell, Tex.Com.App., 24 S.W.2d 385; Standard Accident Ins. Co. v. Bear, 134 Fla. 523, 184 So. 97, 127 A.L.R. 1.