Appellee Bird’s Motion for Rehearing.
As stated in the original opinion, appellant S. E. Blair and appellee P. Rierson entered into a written contract, by the terms of which Rierson, for*a stated consideration, agreed to sell to Blair, and Blair agreed to purchase, a certain tract of land, each party depositing in escrow $500, which, said contract provided, in case either party breached said contract,' the $500 deposited by said defaulting party should be paid to the nonde-faulting party. After the execution of said contract, appellee Rierson conveyed said land to appellee V. H. Bird. Appellant Blair brought this suit against P. Rierson and "V. H. Bird for specific performance, attaching to his petition and making a part thereof said contract, and pleaded in the alternative, in case he was not entitled to specific performance, for damages for the difference between the market value of said land at the time the contract was made and the contract price. Separate general demurrers by both Rierson and Bird were sustained by the trial court, and, appellant refusing to amend, the cause was dismissed, from which order Blair appealed, alleging error in the action of the court in sustaining said demurrers. This court held, in effect, that appellant Blair was not entitled to specific.performance, nor was he entitled to damages in the difference between the market value and contract price of said land, but the measure of his damages was the $500 specified in the contract, and, as appellant’s pleadings were sufficient to authorize him to recover of Rierson said $500, the court was in error in sustaining the demurrer, and reversed and remanded the entire ease. We think in this" we were in error. Bird was not a party to the land contract, and in no way liable for the $500. He was made a party only upon the assumption appellant Blair was entitled to specific performance, and, having held he was not so entitled, he stated no cause of action against appellee Bird, and the trial court was correct in sustaining appellee Bird’s general demurrer.
The motion of appellant is overruled. The motion of appellee Bird is granted, and our former holding reformed to the extent of affirming the judgment of the trial court as to Y. H. Bird.