(concurring) :
I concur in affirming the judgment, adding these observations:
I have no doubt that if it be shown that a debtor desired that a particular debt be paid, and that he made a valid contract with a third party for that express purpose, the latter would be bound to fulfill that obligation. But this case was not presented to the court below on that theory and we should not be concerned with it on appeal.1 In the posture in which this case was presented to the trial court, where both parties moved for summary judgment on the basis of the pleadings, deposition and documentary evidence, and where each insists that it is entitled to judgment as a matter of law,2 the fair and reasonable inference to be drawn is that Mesa Petroleum Company took over the assets and liabilities of Standard Gilsonite in such a way as to stand in its shoes.
It is important that plaintiff Mojave was fully informed of the Chapter XI bankruptcy proceeding in which it was originally listed as a secured creditor; and that the so-called new promise to pay the Mojave obligation was made in connection with changing itself to an unsecured creditor *246status. This occurred in June and thus two months before the order of confirmation of the Referee in Bankruptcy which acts the same as a discharge in bankruptcy as to the unsecured creditors.3
. Pettingill v. Perkins, 2 Utah 2d 266, 272 P.2d 185.
. To be distinguished from situations whore the position of one or both parties is that, if the summary judgment is denied, they will present proof which will entitle them to recover. See West v. West, 15 Utah 2d 87, 387 P.2d 686.
. See. 371, Chap. 11 of the Bankruptcy Act; and see Poly Industries Inc. v. Mozley, 362 F.2d 453 (9 Cir. 1966).