On Motion for Rehearing.
At a former day of the term, we reversed the judgment of the trial court and rendered judgment for appellant, North Texas National Bank.
We reached this decision for reasons fully stated in the opinion on file, which is referred to as explanatory of our former and present holdings. We held that appellant, under the facts and circumstances, was both successor and assign of the Southwest National Bank; therefore that appellees, as guarantors, were liable for money loaned by appellant to the Texas Mortgage Company, in reliance upon the guaranty contract of July 29, 1921, that obligated appellees to pay Southwest National Bank, “its successor, successors or assign,” any and all indebtedness for which the Mortgage Company was then indebted to said bank, or might in the future become indebted to it, “its successor, successors or assign.” The opinion discussed the issues that were given prominence in the briefs and arguments, but nowhere was there a suggestion that the pleadings were insufficient to warrant a judgment in favor of appellant; hence that question was not passed upon. In their motion for rehearing, however, appellees insist that the pleadings are insufficient as a basis for the judgment rendered by us in favor of appellant, in that, after ■ the trial court sustained special exceptions to appel*501lant’s second amended original petition and struck out paragraphs 1 to 6, inclusive, there was not left a sufficient basis for the judgment.
The trial court, after the exceptions were presented, took same under consideration and made no ruling thereon until after the conclusion of the evidence, and at that juncture sustained the exceptions and struck out the portions of appellant’s pleadings above mentioned. This ruling had the same practical effect as if a general demurrer had been sustained, for it left of the original pleading only the formal part and certain alternative allegations, raising the issues of estoppel and agency that were based and dependent upon the parts stricken out, but, standing alone, were unrelated; in fact, incoherent. Appellant, however, in an attempt to retrieve the ground lost by the ruling of the court, filed a trial amendment, but failed utterly to allege a cause of action under the guaranty contract, that is, failed to allege that appellant, in reliance upon the guaranty contract, had extended credit to the Mortgage Company in the sum of $20,000, for the recovery of which the suit was brought. These essential allegations were made in paragraphs 5 and 6 of appellant’s second amended original petition, stricken out on exceptions, but were not reproduced in the trial amendment.
Appellant properly assigned error on the action of the court in sustaining these special exceptions, the questions, however, were only vaguely presented in its brief and not referred to at all in either the written or oral arguments ; in other words, it seems that counsel for both parties, and the court following the lead of counsel, proceeded altogether on the theory that the pleadings were sufficient.
The trial court, in our opinion, erred in sustaining the special exceptions and in striking out the portions of appellant’s petition, therefore the case will be remanded.
The motion of appellees for rehearing is sustained, our judgment heretofore rendered for appellant is set aside, and in lieu, the cause will be remanded for further proceedings.
Motion sustained; cause reversed and remanded.