On Petition for a Rehearing.
Elliott, J.As we said in our original opinion, the controlling question in this case is whether the appellee did use the promissory note assigned to him by the appellant. That he did use it there can be no doubt, for he filed it as a cause-of action against the maker in an action regularly brought.. It is true that the appellee did not take judgment on the note, but why he did not the record does not inform us. He agreed to pay for the note in the event that he used it, and as he did use it we can perceive no reason why he should not be held to his contract. To us it seems clear that, where a party agrees to pay for a thing if he uses it, he becomes bound the moment he makes use of the thing for which he bargained.
Counsel put much more of assertion than of argument into their brief, and make many assumptions that can not be sustained. They forget that their client promised to pay for the note if he could use it, and, omitting this important fact, argue that the judgment rendered in the action in which the note was sued on-was not conclusive. We think it imma*377terial whether the judgment was or was not conclusive, for the appellant elected to make use of the note, and, for anything that appears, might have made a successful use of it if he had done his duty. As we said in our former opinion, there is nothing to show that he might not have obtained judgment, for surely the note constituted a prima facie cause of action. Its bare production would have entitled him to judgment, unless a defence was successfully established. But, after all, the case must be decided against him irrespective of this consideration, because he did elect to use the note.
Filed June 28,1888.If the appellant had averred that there was a mistake in reducing the contract to writing, there would be much more of relevancy in counsel’s argument, but no such issue was tendered. The contract as it is written does not, as counsel unwarrantably assume it does, restrict the use to any particular method, but, on the contrary, provides that if any use is made of the note the appellant shall pay for it. In order to make the contract mean what counsel assume it does mean, it would be necessary to interpolate important words.
Petition overruled.