OPINION ON MOTION FOR REHEARING
One proposition is advanced, we believe for the first time in this case, in the Bank’s motion for rehearing.
It there urges that the alleged misrepresentation that forms the basis of Republic’s fraud action against the Bank was a gratuitous statement made by the Bank in regard to a transaction between Republic and a third party (Solesbee), in which the Bank had no interest. The Bank’s contention is that one who is disinterested in a transaction induced by his misrepresentations becomes liable in damages only where the representations were made with knowledge of their falsity and with the intent to deceive the person who acted upon them.
In other words, the Bank contends that in addition to the elements in the ordinary fraud case that we have heretofore outlined in our original opinion, that in this particular case against the Bank under the particular facts of this case two additional elements must be established by Republic, such additional elements being: (a) knowledge of the Bank that the representation was false, and (b) the making of the representation with the intent to deceive the person who acted upon it.
The Bank argues that there was “no evidence” offered at the summary judgment hearing to show that the Bank or its representative that made the statement, Mr. Flack, knew that the statement in question was false. The Bank says the summary judgment in this case was therefore properly granted in its favor.
The only authority the Bank cites in support of its contention is 37 Am.Jur.2d 275, Sec. 207. No Texas cases are cited. Republic has not had an opportunity to fully brief this question.
In view of this and of the fact that it is not necessary for us to decide this question in order to fully dispose of this motion for rehearing, we make no effort to decide the question of whether or not these two additional elements are a part of the cause of action sued upon by Republic.
Our ruling here is that even if those two elements are essential elements of the cause of action brought against the Bank, that the trial court still erred in granting the Bank’s motion for summary judgment.
As stated, the Bank now contends that there was “no evidence” offered at the summary judgment hearing to prove that Mr. Flack, the Bank’s Vice President, knew that the representation in question was false, and that for this reason the trial judge properly granted the Bank’s motion for summary judgment.
We overrule this contention. The burden was on the Bank to establish as a matter of law that one or more of the essential elements of the fraud case pleaded by Republic were not present.
In discussing this point we assume without deciding the point, that knowledge of *400the falsity of the representation by Mr. Flack was an essential element of the case. We have heretofore quoted testimony of the witness Solesbee, which could be interpreted by the fact finder as evidence to the effect that Solesbee had not made, prior to the time the representation was made, any arrangements whatever with the Bank to get the money with which to pay for the heaters.
The fact finder would have thus been justified, based on Solesbee’s testimony, in finding that the representation that arrangements had been made prior to that time to get the money in question was false.
The evidence further showed that all of Solesbee’s dealings at the Bank were with Mr. Flack. If no arrangements had been made for getting this money, then Mr. Flack would have necessarily known it and have necessarily known of the falsity of the statement, if it was in fact false.
With the evidence at the summary judgment hearing in this state, it would appear obvious to us that a fact issue is present in this case on the question of whether or not the Bank or Mr. Flack knew of the falsity of the representation. We are also convinced that the Bank did not establish as a matter of law that the representation in question was not made with intent to deceive.
Neither this Court nor the trial court had the power or the authority to pass on the credibility of the witnesses involved at the summary judgment hearing. It appears to us that the Bank in making its argument has highlighted the evidence offered at the hearing that was in its favor and has completely disregarded the evidence and inferences therefrom that were in Republic’s favor on the issues involved and seeks to have the appeal determined on that basis.
Actually, as demonstrated in the original opinion, we are required to do just the opposite in deciding this appeal.
Appellee’s motion for rehearing is overruled.