On Motions of Appellees for a Rehearing.
The conclusion reached by this court that Freeman’s promise, if a personal one at all, was to pay the debt due to the bank if the lumber company did not pay it, and so save E. D. Steger harmless as against his liability as an indorser of the note, is attacked as in conflict with the finding of the jury, not demanded by the testimony, and therefore erroneous. The jury found that Freeman promised to pay the debt, but they were not authorized by the charge of the court to determine, and did not determine, whether the promise was an unconditional one or not. Therefore the conclusion of this court that the promise was a conditional one was not in conflict with the finding made by the jury. Further consideration of the record has strengthened the conviction entertained at the time the appeal was disposed of, that it conclusively appeared from the testimony that the promise was a conditional one. The lumber company owed debts it was unable to pay. Those debts, the holders of its stock agreed, amounted to about the sum of $30,000. To pay them the company borrowed that sum of Freeman. He was to assume the active and exclusive control of the company’s affairs, and with the sum so borrowed and its other assets pay its debts. That such was his undertaking all the witnesses agreed. However, the bank and E. D. Steger contended that his undertaking was further to pay out of his own means such of the debts of the company as its assets, including the sum borrowed, were insufficient to pay. Taking their view of it, we are unable to see how it can be con*688tended that Freeman’s promise was other than conditional. It was to pay the debt due to the bank out of his own means, if the assets of the lumber company should prove to be insufficient to pay same. If they proved to be sufficient, he was to be under no obligation to pay out of his own funds. It was not contemplated, if he so paid the bank, that the payment should operate to relieve the lumber company of its liability as the maker of the note. On the contrary, it was understood that, if he so paid the bank, he would be entitled to look to the lumber company for reimbursement of the sum so paid. By Such a payment he was to become and be the creditor of that company in the place of the bank. The purpose of the undertaking plainly was not thereby to provide for the payment of the debt, whether it should be necessary to do so to protect Steger from loss or not, but to so pay it if, and only if, it should be necessary to do so to save Steger harmless. The purpose, the sole purpose, of the undertaking, unquestionably was to indemnify Steger against his liability as an indorser of the note. On such an undertaking, as stated in the opinion, the bank could not maintain a suit.
[3] By a plea duly verified and otherwise sufficient for the purpose filed February 1, 1911, Freeman set up a privilege he claimed to be sued in Dallas county where he resided. February 22, 1911, he filed pleadings which he styled his “original answer,” and which commenced as follows: “Now comes defendant P. R. Freeman, and, not waiving his plea of privilege filed herein on the 1st day of February, 1911, but insisting thereon, demurs,” etc. It was insisted in briefs submitting the appeal, and the insistence is renewed in the motions, that the plea of privilege should be treated as Freeman’s original answer, and the other pleading referred to as an amended answer, and that, so treating them, it should be held that the filing of the amended answer operated as an abandonment by Freeman of his claim of a right to be sued in Dallas county. We were of the opinion that this contention should be overruled, and still think so. It would, we think, be unreasonable to hold that Freeman by filing the answer had abandoned his plea of privilege in face of his assertion to the contrary in the answer.
[4] We did not undertake to determine, and will not, whether the assignments required a consideration of the grounds upon which the appeal was disposed of. If the conclusion reached, that the promise, if one was made as contended, was merely to indemnify Steger, is correct, the judgment was fundamentally wrong, and we were authorized, and we think it was our duty, in the absence of assignments attacking it, to set it aside. Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; Harris v. Petty, 66 Tex. 514, 1 S. W. 525; City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518; Texas Brewing Co. v. Templeman, 90 Tex. 281, 88 S. W. 27.
The motions are overruled.