On a petition for rehearing, we have again carefully examined the record in this case, and find no reason to change our former opinion. The points most urgently insisted upon by appellant in the petition, that the court erred in denying his motion to compel respondent to elect between an action for an agreed price and an action for reasonable value, and his motion for judgment notwithstanding the verdict, were not specified in his brief as error.
Appellant argues that the jury might have considered the oral evidence admitted that appellant promised to pay this indebtedness after it was contracted, as a promise on the part of appellant to pay the debt of Earl Arave and his associates, and that although such evidence was adaptable to the theory of an authorized or ratified agency, the jury might have based their verdict on the application of such evidence to the theory of a promise to pay the debt of another, *Page 729 as to which such evidence was incompetent because not in writing. This is answered by the fact that instruction No. 10 fully explains the proof necessary to support a promise to answer for the debt of another, and we cannot presume that the jury disregarded that instruction.
A rehearing is denied.
William A. Lee, C.J., and Wm. E. Lee and Givens, JJ., concur.
Budge, J., dissents.