On Rehearing.
Appellant criticizes our fifth and sixth conclusions of fact, saying- it did not agree with appellees that the facts thus stated are correct. We understood from the oral argument and from appellant’s brief that it agreed to these facts, but, as it now says we are in error in so concluding, we withdraw the statement. Appellant says that the true facts are that appellee paid the labor bills in full as and when presented to him, and that the amount sued for was for material bills he knew nothing about until the contract had been abandoned. The fifth and sixth con-*81elusions of fact have abundant support, not only in the evidence, but also by the jury’s finding answering question No. 4, which is reflected by our opinion. To this issue the jury answered, “Yes,” and of this answer ap--pellant says in its brief, “the jury could not have answered otherwise.”
This case was not tried in the lower court nor briefed in this court on the theory that appellee breached his contract by paying the weekly estimates in full as and when presented to him', for, as found by the jury’s verdict, the payments so made were in accordance with the 25 per cent, retainage clause. Appellant defended upon the ground that appellee, though retaining 25 per cent, every two weeks, continued his material payments until all the contract price had been exhausted. It was appellant’s theory that appellee, not having any of the contract price in his hands when he called upon it to respond under its bond, had breached the contract. It was its theory that Herbst should have been paid some sum less than the contract price; that, when he abandoned the contract, appellee should have owed him some amount on the contract price, and that this amount, under the contract, should have been 25 per cent, of the value of the material used. Though there were unpaid bills in excess of the 25 per- cent, retainage, and under the jury’s verdict this amount was at all times owing, because appellee paid to Herbst the full contract price and because Herbst had nothing coming to him from appellee, appellant insisted in oral argument and in its brief that the contract had been breached. Appellant’s criticisms of our conclusions of fact are overruled, as is also its motion for additional findings of fact. ,.
As a proposition of fundamental error, appellant now suggests for the first time that it is not liable because appellee was under no obligation to pay the bills sued for in this case. It says that appellee, under the uncontradicted evidence, paid the contractor, Herbst, the full contract price without notice from the holders of the material bills ‘of their claims, and therefore under article 5463 he was protected against liability. We quote as follows his argument on this proposition:
“It thus appears that the payment by ap-pellee of these unpaid labor and material bills was purely a voluntary act upon his part. He did not owe these bills. The debts were those of Herbst, the contractor. The holders, not having given appellee notice of their unpaid claims before he had paid to the contractor the full amount of the contract price, could fix no mechanic’s lien upon the improvement or property, and appellee was, therefore, under no necessity to pay these bills.
“Appellant was under no obligation to pay them. It had not undertaken by its bond to pay all the labor and material bills ■ that Herbst contracted in the performance of his contract. It only undertook to indemnify Russell ‘against loss or expense resulting from the failure of Herbst to pay all labor and material bills in connection with the contract.’ Appellee having paid to Herbst the full amount of the contract price, without notice of any unpaid labor or material bills, the failure of Herbst *to pay said bills could not, as a matter of law, result in loss or expense to appellee. He did not personally owe the bills, and the holders of the same could not fix a mechanic’s lien upon his -improvement or property for the amount thereof.”
We decline to review the facts or make any conclusion of fact or of law on this proposition presented for the first time on motion for rehearing. The proposition is not one of fundamental error. Yardley v. Houston Oil Co. (Tex. Civ. App.) 288 S. W. 861.
The motion /for rehearing is overruled.