On Motion for Rehearing.
In our original consideration of this case, we overlooked the following allegations, which were contained in file defendant’s answer:
“That plaintiff’s damages, if any, are due to the default and-miscarriage of said Rileys-in not completing said building as they had contracted to do, and any attempt to hold this defendant responsible for such damage is-in contravention of the statute of frauds, which said statute this defendant here and now invokes as a complete defense against the plaintiff’s damages as to him.”
Article 3965, Rev. Statutes, which is commonly termed the statute of frauds, reads as follows:
“No action shall be brought in any of the courts in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized:
“1. To charge any executor or administrator upon any promise to answer any debt or damages due from his testator or intestate, out of his own estate; or,
“2. To charge any person upon a promise to answer for the debt, default or miscarriage of another; or,
“3. To charge any person upon any agreement made upon consideration of marriage; or
“4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year,” etc.
We think it clear that the pleading just quoted invokes subdivision 2 of that statute, and it does not invoke subdivision 4 of -the statute, as was insisted upon original hearing, and which contention is stressed in motion for rehearing, nor was there any special exception invoking the fourth subdivision. Furthermore, appellant’s only assignment of error which presents the defense of the statute of frauds is assignment No. 4, which reads as follows:
“The court erred in overruling this defendant’s special exception No. 4 to the allegations in plaintiff’s first amended original petition, for the reasons stated in said exception, which exception is as follows:
‘This defendant further specially excepts to the plaintiff's pleading in so far as it affects the said O. D. Akers, for the reason that it is an attempt to hold for the debt, default, or miscarriage of another, to wit, Dee Inez Riley and F. O. Riley, when there is no promise or agreement or memorandum thereof in writing, signed by the said G. D. Akers, or by any person for him thereunto lawfully authorized, pleaded by the plaintiff.’ ”
[7] That exception, as did the plea quoted; invokes subdivision 2 of the statute of frauds, and not subdivision 4, and no assignment is presented to the action of the court in overruling any plea or exception based on subdivision 4 of the statute. Even though subdivision 4 of- the statute had been invoked by a special exception or by a plea, appellant would be- in no position to invoke that defense upon appeal, in the absence of some assignment- presenting error to the action of the court in overruling that defense. It has been held that advantage may be taken of the statute of frauds under a plea of general denial, by objection made to the proof offered by plaintiff to sustain his cause of action, if the statute of frauds is made the basis of the objection; although decisions to the contrary are shown in note in Ann. Cas. 1912D, p. 46, but it has álso been decided that the defense on the statute of frauds, whether made by objection to testimony or by special exception or by plea, may be limited to some particular subdivision of the statute; and when such defense is so limited, there is a waiver of the right on appeal, for the. first time, to invoke other provisions. Johnson v. Tindall (Tex. Civ. App.) 161 S. W. 401; International Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93; League v. Davis, 53 Tex. 9.
Appellant urgently insists that we were in error in holding that he has not, in his brief, pointed out any objection to the plaintiff’s proof of the oral modification of the original contract between plaintiff and the, Rileys, based upon subdivision 4 of the statute of frauds, and, in support of that contention, he refers to an assignment in his brief based upon a bill of exception taken to the admission of the testimony of Mrs. Hanscom, the plaintiff, to the effect that after the Rileys had entered into the written contract of lease of the hotel property with her she had an oral agreement with them, by the terms of which they consented to accept $1,500 cash, which was paid, in full satisfaction of her obligation to deposit $2,400 as earnest money to cover rents for the first and last months of the rental period. The objection urged to the admission of the testimony, as set out in the bill of exception referred to, reads as follows:
“To which counsel for defendant, Akers, objected, stating as grounds that whatever verbal contract they made or might have had was an attempt to alter or change the terms of a written contract by verbal contract without showing fraud, accident or mistake.”
*325And following tlie admission of testimony after tlie foregoing objection was made, tlie bill contains the following recital:
“To which the defendant Akers again objected as follows: ‘We except further to any yerbal contract in so far as it affects the defendant Akers, unless it is shown he was present or had notice of same.”
And following the admission of further testimony of the witness to the same effect, the bill of exception contains this further recital:
“Whereupon the defendant Akers again insisted upon his objection to this^ evidence, which was overruled by the court, and the witness permitted to testify as follows.”
The objection so urged to the admission of the testimony did not escape our attention upon original hearing, as appellant insists must have' been true. But we reached the conclusion then, and adhere to it now, that the objection so urged was not sufficient to invoke any provision of the statute of frauds, but only invoked a general rule of evidence .forbidding the introduction of parol proof of contemporaneous agreements not in writing, the effect of which would be to alter or change the written terms of the contract, in the absence of a plea of fraud, accident, or mistake. In further support of our conclusion that the oral agreement of appellant to assume Riley’s obligation to Mrs. Hanseom, in part consideration for the conveyance of the property to him by Riley was not subject to the provision of subdivision 2 of the statute of frauds, see 20 Cyc. p. 1074, and authorities there cited. In his motion for rehearing, appellant says:
“The record is absolutely silent as to any promise to pay the obligation; it is also silent as to any fact which would indicate any knowledge of the parol change in the written contract which appellant was purchasing.”
The' testimony of Mrs. Hanseom, set out in our original opinion, we think refutes the correctness of that contention, and the trial judge was the exclusive judge of the credibility of the witnesses.
The motion for rehearing is accordingly overruled.