On Motion for Rehearing.
We have very carefully considered the very able motion for a rehearing, filed herein by ap-pellees, but we are still of the opinion that the proper disposition was made of this cause in our original opinion.
Appellees strenuously urge that appellant’s, Binge’s, promise to pay $500 on the notes of the Templemans was an unwritten promise to answer for the debt of another, and therefore void under the statute of frauds. (Vernon’s Ann. Civ. St. art. 3995).
We are well aware of the fact that, where a contract is based upon a promise-*1047for a promise both promises must be valid, enforceable promises or there is want of consideration. If Binge’s oral promise to pay the $500 on the notes was void, as being against the statute of frauds, there would be no consideration on his part and the contract would be unenforceable.
We conclude that the promise made by Binge was a binding and enforceable promise.
In the first place, Binge did not agree to see that $500 was paid or to guaranty the payment of $500, but, on the contrary, he made the direct promise according to the allegation contained in the petition that he would pay $500.
In Simkins on Contracts (3d Ed.), beginning on p. 99, we find the following: “The nature of the promise is one of guaranty or surety-ship, not indemnity. The importance of this distinction is, that if the promise is one of guaranty, it falls within the statute and must be in writing, but if it is construed as indemnity, it is without the statute and need not be in writing in order to recover.” Citing Slayden v. Ellison (Tex. Civ. App.) 68 S. W. 715; Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291; Heidenheimer, etc., v. Johnston, 1 White & W. Civ. Cas. Ct. App. § 646.
On the other hand, Binge had, according to the petition, executed his promise. He had paid the $500. The fact that his promise was executed was sufficient to take it out of the statute of frauds. Simkins on Contracts (3d Ed.) page 113, reads as follows: “Rule. IY. Though the contract, as made may be within the statute, yet if the consideration has been paid, or it is wholly executed on one side, then the statute does not apply.”
Binge has wholly executed his promise and therefore if it was originally void as being against the statute of frauds, it was taken out by its performance. It has now become immaterial whether or not Binge could have been forced, under the law, to carry out his promise. He has actually carried it out. His promise is wholly executed and he is in a position to call upon the company to carry out its promise.
Appellees do not directly insist upon the question of agency, but there is some argument to the effect that Binge was the agent of Templeman Bros., and that therefore his acts were the acts of the Templemans, and that this contract should be viewed as though it had been entered into by the Templemans directly, We conclude that the petition permits of the interpretation that Binge was not acting as the agent of the Templemans at the time he entered into the contract, and it becomes our duty to construe the pleadings in the most favorable light to the pleader, when considering whether or not it is subject to general demurrer.
Appellees’ motion for a rehearing is overruled.