Apparently appellant fails to understand the purport of our original opinion. He contends that the statement therein, "Other renewals or extensions on the note were admittedly necessary before the offer became an absolute guaranty," was not authorized by any fact pleaded. This criticism is apparently well taken, but as we view it entirely immaterial. The demurrer was directed at appellant's complaint and sustained upon the ground, among others, that the guaranty sued on was special to the First National Bank of Springer and therefore appellant stated no cause of action in his complaint. The guaranty shows on its face that it was special and for the benefit of a third party. Appellant urges that appellee did not raise the question that the guaranty was conditional, which is true; but this is immaterial because the condition in the guaranty made it special and the demurrer was upon that ground. No presumption will be indulged, in the absence of an allegation to that effect, that the condition had been performed, for that would make a different case. Then, whether it was admitted that renewals were necessary to keep the offer good is immaterial. The case was based on a conditional guaranty, special to the Springer Bank, and no facts are alleged that would make it absolute or general. Therefore the demurrer to the effect that *Page 147 it was a special guaranty was properly sustained.
We did not hold in our original opinion, as appellant seems to assume, that if the condition of the guaranty had been performed it would have been general. We stated: "The guaranty is not absolute, but made upon the indefinite condition `that renewals or extensions will be granted by you (First National Bank of Springer) within reasonable limits so as to give the company a chance to work out in an orderly manner.' Except for thecondition the guaranty would be general and run with the note * * *." But we did not pass on the effect of performance, as no such case is before us. The suit being upon a conditional guaranty, special to the First National Bank of Springer, the appellant cannot recover on it.
Motion for rehearing is overruled.
SADLER, C.J., and HUDSPETH, BICKLEY, and ZINN, JJ., concur.