On Rehearing.
[8] In their motion for rehearing, appel-lees call the court’s attention to the rule that, in considering the sufficiency of a petition attacked by general demurrer, the answer may be looked to and omissions in the petition cured by allegations of the answer. This rule is well established and has been applied by this court. Hotel Dieu v. Armendariz, 167 S. W. 182. Appellees, in their motion, also call our attention to the answer, and point out an averment therein sufficiently showing that Wyatt and Wingo signed the bond as sureties. This aired the want of an allegation in the petition that Wyatt and Wingo executed the bond.
[9,10] As to the ruling that the petition was demurrable because of its failure to show a breach of the bond by the sureties, appel-lees seem to misunderstand our holding. It was not held that it was necessary to show a demand of the sureties to perform the conditions of their bond. When an obligation arises upon a contract, it becomes the legal duty of the obligor to perform his obligation. If he fails so to do, he has breached his obligation; and this is true, though no demand has been made of him. An allegation that an obligation arose does not necessarily imply that the obligor has failed to discharge the same. So the allegation that Wiyatt and Wingo became liable and indebted to plaintiffs on the bond does not imply a failure on their part to discharge their liability and indebtedness. In holding that the petition in this case did not show a breach by the sureties was meant that it did not show a refusal or failure on the part of the sureties to discharge any liability or indebtedness which it was alleged had arisen.
[11] But, however this may be, it is concluded, upon two authorities cited by appel-lees in their motion (Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324; Merchants’, etc., v. Williams, 181 S. W. 861), that the case should not be reversed because of the absence of an allegation in the petition showing breach of the bond. The question arises simply upon the action of the court in overruling the general demurrer. In Rains v. Wheeler, supra, the court refused to reverse upon an assignment complaining of the overruling of a general demurrer, assigning as its reason that no prejudice aca-ued to the defendant. Merchants’, etc., v. Williams, supra, followed this ease, and refused to reverse where a general demurrer had been improperly overruled, saying that the omission in the petition did not contribute in any manner to the judgment rendered. In the case at bar the special defenses set up in appellants’ answer and the undisputed evidence shows that they do not claim to have paid appellees’ demand, but assert exemption from liability upon other grounds. Upon the whole record it-is very plain that the omission from the petition of the allegation in question did not in any wise contribute to the judgment rendered, that no possible prejudice has thereby accrued to appellants, and upon the authority of the cases cited it is now held that the improper overruling of the demurrer is not ground for reversal. We do not undertake to announce any general rule upon this subject, but limit the holding in this case to the instant facts. In this connection, it is proper to say that Chief Justice Harper has at all times been of the opinion, under the authority of Milliken v. Callahan County, 69 Tex. 205, 6 S. W. 681, that the petition was sufficient within itself. He did not dissent from the original holding in the case, for the reason that he thought the case should be reversed upon the eleventh assignment.
There were various other reasons urged why the general demurrer should be sustained, but, with the exception noted, the pleadings are regarded as sufficient.
In view of the conclusion now reached as to the sufficiency of the pleadings, it becomes necessary to pass upon those assignments not specifically mentioned in the original opinion. The case was tried before a *684jury and submitted upon special issues. Tbe charge of the court is as follows:
“This case will be submitted to you on special issues, and you are requested to return your answers to the following 'questions:
“The property to which the two questions propounded in this charge refer is the following: [Here follows a description of certain property which Davis was required to surrender to appel-lees in the accounting suit in the district court.]
“The total value at which the same was transferred by W. O. Davis, and received by plaintiffs herein, was $30,900.
“Question No. 1. Was the value at which W. O. Davis transferred the above property to the plaintiffs, by virtue of the orders and stipulations in cause No. 11817 in the Forty-First district court of El Paso county, Texas, a fair and reasonable valuation of same? [Answer: No.]
“Question No. 2. What was the fair and reasonable value of the property described above at the time the same was transferred by W. C. Davis to the plaintiffs herein, on the 19th day of June, 1916? [Answer: $36,400.]”
[12] Appellants complain that the charge was upon the weight of the evidence, because it failed to submit to the jury the value of certain other items of property which Davis had likewise been required to surrender to appellees in .the accounting suit. It seems that these other items had been accepted by appellees 'at an agreed value in the accounting suit. There are two replies to this assignment :
In the first place, appellants point out no evidence that these items were of any greater value than that at which they were accepted by appellees in the accounting suit. Unless there was evidence to show that the items were of greater value than the value at which they were so accepted, then there was no issue to submit.
[13,14] In the second place, this case was submitted upon special issues, and in such cases the failure to submit an issue does not present a ground of reversal unless its submission has been requested in writing by the complaining party. Article 1985, R. S.
Error is assigned to the refusal to submit the following issues:
“Question No. 1. What amount of loss did W. O. Davis, as executor and trustee of the estate of H. D. Davis, make or sustain?
“Question No. 11. What was the total amount of loss sustained by plaintiffs against W. O. Davis as executor and as guardian?
“Question No. 16. What was the amount of loss sustained by plaintiffs against W. O. Davis as guardian?
“Question No. 19. What amount of loss, if any, was sustained by plaintiffs against W. O. Davis:
“A. As guardian?
“B. As executor and trustee?
“State both amounts, and in so answering same, let your answer be as follows:
“Answer A. The amount of loss sustained by plaintiffs against' W. C. Davis as guardian is $-
“Answer B. The amount that was sustained by plaintiffs against W. O. Davis as executor and trustee is $-.
“Question No. 14: Did W. O. Davis as guardian expend annually upon'plaintiffs herein, while they were minors, for their education and maintenance, a sum equal to two hundred ($200) dollars per annum ? Answer Yes or No.
“Question No. 15. Did W. O. Davis as guardian expend for the maintenance and education of plaintiffs herein while they were minors, and upon each of them, a sum equal to one-third of two hundred ($200) dollars annually?
“Question No. 24. If you find that any part of the $2,000 collected by the defendant W. O. Davis as guardian was turned over to the plaintiffs herein, either in money or property, at the time of the final accounting in the suit in the district court or prior thereto, did the plaintiffs have notice or knowledge thereof?”
Questions 1, 11, 16, and 19 were properly refused, because they called for a conclusion upon a mixed question of law and fact. Watson v. Patrick, 174 S. W. 632; Rogers v. Broadnax, 24 Tex. 538; Gresham v. Chambers, 80 Tex. 544, 16 S. W. 326. The requested issues were not accompanied by any instruction upon the law by which the same could have been intelligently answered. We do not see how the jury could have intelligently answered the same, without appropriate instructions to guide it in determining the “amount of loss.”
[15] We are of the further opinion that it was immaterial what amount had been lost by Davis as executor and trustee; and the majority are of the further opinion that the undisputed evidence shows, under the rule announced in the original opinion, that Davis had failed to account to appellees for the guardianship fund and that it has been wholly lost to appellees. Hence there was no necessity to submit any question to the jury in that respect.
[16] As to questions 14 and 15, these also were properly refused as immaterial under the evidence. As was pointed out in the original opinion, the probate court never authorized the expenditure of any part of the-guardianship fund, and Davis had ample funds as executor and trustee to educate and maintain the children, and under his brother’s will was charged with the duty to use sufficient of those funds for that purpose. Furthermore, in the accounting suit he was allowed credit for $23,521.20, being all that he claimed to have expended in that behalf.
Question 24 was immaterial. If Davis, under the rule stated in the original opinion, has accounted to appellees for any part of the guardianship fund, then his sureties to that extent would be protected, regardless of any question of notice to appellees.
[17] Assignments 13, 14, 15, and 16 assert that the judgment is contrary to the law and the evidence. Upon the facts stated and rule announced in the original opinion, these assignments are regarded as without merit. *685As was therein stated, the consolidation order of the probate court of July 21, 1908, is regarded as a nullity. As such it is subject to collateral attack.
[18] Under the eleventh assignment, complaint is made of the refusal to submit four Questions, viz.:
“Question No. 21. Was any part of the §2,000, collected by the defendant W. O. Davis as guardian, turned over to or has it been received, by the plaintiffs herein, either in money or property, at the time of the final accounting in the suit in the district court, or prior thereto? Answer Yes or No.
“Question No. 22. If you have answered the above and foregoing question in the affirmative, what amount, either in money or property, was so turned over by him?
“Question No. 22a. Did the $2,000, or any part thereof, which was collected by the defendant W. O. Davis as guardian, find its way into the funds or property turned over by W. O. Davis to the plaintiffs herein in the final accounting in the suit in the district court or prior thereto? Answer Yes or No.
“Question No. 23. If you' have answered the foregoing question in the affirmative, what amount in funds or property was turned over by said W. C. Davis?”
The majority are of the opinion that the refusal to submit these questions presents no error. The record discloses these undisputed facts: When the probate court made the order of July 21, 1908, Davis commingled the $2,000 with the funds which he held as executor and trustee. He testified that it lost its identity, and he had never been able to trace it since. He admitted that, when he was required by the district court to render an accounting of his trust, he had used $40,-500 of trust funds in his personal affairs; that he had invested the same in various items of property. This property he was required to surrender to appellees by the judgment rendered in the accounting suit. He received credit for the property so surrendered. He also received credit for $23,521.20 for moneys expended in the maintenance and education of appellees; also $3,282.73 expenses incurred in the management of the estate: He was allowed all he claimed to have expended for expenses, maintenance, and education. After allowing these credits, there was still a balance due of $13,643.03, for which judgment against him was rendered and is still unpaid. A part of the property which he surrendered was taken at an agreed value, and he testified the valuation was fair, and there is no evidence to the contrary. The remainder was taken at an appraised value of $30,900. This is the property described in the foregoing charge of the court. In this suit the jury found that the fair and reasonable value of that property was $36,400, and to this finding appellants make no exception. The difference between $36,-400 and $30,900 is $5,500.
[18] As the sureties were not parties to the accounting suit, they were not bound by the appraised value of $30,900; and in this suit, upon the finding of the jury, it must be assumed, in so far as the rights of the sureties are concerned, that Davis was entitled to an additional credit of $5,500 for the surrendered property. Deducting this amount from the $13,643.03 still leaves a balance of $8,143.03. On account of the commingling of funds, it is wholly impossible to say how much of it represents the guardianship fund. The commingling was unlawful. The appel-lees were minors, and had no way to prevent it. The appellants, by their bond had guaranteed the faithful discharge by Davis of- his duties as guardian. They must assume any loss resulting from the act of their principal in commingling the guardianship fund with the other trust fund. It is clear upon the facts stated that Davis has not accounted to appellee for all the funds which he commingled. There is at least a balance due of $8,143.03. The burden rested upon appellants of showing that he had accounted for this $2,000, and there is no evidence to trace it, or any part thereof, into the property which Davis surrendered in the accounting. He testified that he lost all trace of it, and ■ there is no evidence to the contrary. Upon the evidence, it would have been impossible for the jury to have answered the questions noted above, and the majority is of the opinion that it was not error to refuse their submission. For this reason, the eleventh assignment is overruled.
Chief Justice HARPER does hot concur in this conclusion, being of the opinion that the questions should have been submitted and the case reversed on account of such failure. Judge HARPER states his views as follows:
“I agree that the order of the probate court consolidating the two estates was a nullity, in that it could not have the effect to discharge the guardian, nor to relieve the sureties upon his bond, but leaves Davis in the position of having mingled the funds without any lawful authority. The initial idea of confusion of goods is that there has been such an intermixture of goods owned by different persons that the property of each can no longer be distinguished. In this case, the trust funds and the guardianship funds all belonged to the plaintiffs in equal portions, and the act of depositing the guardianship funds in bank in the trust account could not, of itself, have the effect to lose its identity; nor does the fact that they were invested in the property, without being able to say into which piece of property it went, have this effect, for the reason that in the accounting suit the plaintiffs have accepted this very property, under Davis’ testimony, and there is none to the contrary. The court in the latter case determined that there was not enough property turned over to settle the trust fund, and in addition gives judgment for a definite amount of money. This decree binds the guardian, but not the sureties, because they were not parties thereto. It seems to me that the sureties are entitled to have the guardianship funds first looked after, instead *686of the trust fund consuming the guardianship fund.
“The question here is: Did any of the funds held by Davis as guardian find their way into the funds or property turned into and accepted by plaintiffs in the accounting suit? If so, then the sureties upon his bond should not in this suit be adjudged to again pay it to them. The appellant requested a special issue to be given to the jury to the effect: Did the funds held by Davis as guardian find their way into the funds or property turned into the plaintiffs in the accounting suit? The court refused to submit the issue and this is assigned as error. Davis has testified that it all went into it and there is no evidence,,to the contrary. This I consider reversible error, for under the pleadings and facts it became a question for the jury to determine whether the guardian had accounted, in whole or in part, to his wards for the moneys sued for, and if the jury should so determine the sureties upon the guardian’s bond should have credit for such amount in this suit. America Bonding Co. v. Logan, 132 S. W. 894; Fidelity D. Co. v. Schelper, 83 S. W. 871.
“In passing upon this assignment of error, the majority opinion holds: ‘It is clear upon the facts stated that Davis has not accounted to appellees for all the funds which he commingled.’ In my opinion, we are not in a position now to determine that question, because the jury were not permitted to pass upon it. I cannot give my assent to that part of the majority opinion which holds that, if Davis be given credit for the $6,500, which the jury found was the value of the property over and above what it was taken at in the accounting suit, he would still not have accounted for the $13,643.-03, for which they took judgment in the other suit, for, with the property taken for $5,500 less than it was worth, they have a judgment for that much more than they are entitled to, and we are not justified in presuming that Davis will not pay the judgment as rendered, and, if not, then the $5,500 is subject to the guardianship account, and the sureties should have their credit.”
Upon the view of the majority, it follows that the motion for rehearing should be granted, and the cause affirmed.
It is so ordered.
HARPER, C. J., dissents in part.