On Motion for Rehearing.
It is clear from the appellant’s motion for rehearing and from the appellee’s response thereto that both parties have interpreted Division 2 of our opinion as a holding that the appellee may counterclaim for damages based on fraud, although he may not defend on this basis. Such was not our holding. As indicated in Division 1, the undisputed facts affirmatively negate the existence of fraud in the procurement of the note. What we hold in Division 2 is that fact issues remain with regard to the appellee’s allegation that the appellant breached an agreement to satisfy the indebtedness from the proceeds of the check which the appellee deposited into his co-maker’s account. Such liability, if it exists, would not be for fraud in the procurement of the note but merely for breach of a contractual duty.
Motion for rehearing denied.