the funds of tbe bank by means of overdraft fraudulently allowed -to Ferguson Bros.; (7) that the sum so willfully misapplied by Hudson to tbe use and benefit of Ferguson Bros., by means of overdraft, was a minimum of $12,000; (8) that, at tbe time Harris posted tbe statement sheets and ledger sheets of Ferguson Bros., be knew tbe funds were being willfully misapplied by Hudson to tbe use and benefit of Ferguson Bros, by means of overdraft ; (9) that Harris, at tbe time be posted tbe statement sheets and individual ledger sheets, intended to aid and assist Hudson in tbe willful misapplication of tbe funds of the bank to tbe use and benefit of Ferguson Bros.; (10) that tbe acts of Harris did affirmatively aid in tbe misapplication of tbe funds of tbe bank to tbe use and benefit of Ferguson Bros, in sucb a manner as to materially contribute to tbe success of sucb misapplication; and (11) that, during and at the time Harris kept tbe statement ledger and individual ledger, reflecting tbe $3,000 discrepancy between tbe .two in tbe account of Mrs. O. M. Slaughter, he intended to affirmatively aid and assist Hudson in tbe willful misapplication of tbe bank's funds.
' Tbe court construed tbe bond sued on as a contract of insurance, and, upon tbe basis of tbe answers of tbe jury to tbe questions submitted, entered judgment in favor of tbe defendant'in error for tbe sum of $2,000, with interest, from which action of tbe court tbe Southern Surety Company appealed to tbe Court of Civil Appeals at El Baso where tbe judgment of tbe trial court was affirmed. 5 S.W.(2d) 626.
In granting tbe application for tbe writ of error in this case, tbe Supreme Court expressed tbe opinion that it was inclined ‡0 tbe view that the opinion of tbe Court of Civil Appeals is correct, but granted tbe writ on account of tbe confused state of tbe authorities on tbe subject involved.
Judge Leddy, in tbe opinion of tbe Southern Surety Company Case, supra, has discussed tbe question whether bonds of tbe kind here sued upon are construed as contracts of insurance and subject to tbe rules applicable to such contracts, or whether sucb bonds come under tbe rules applicable to ordinary accommodation surety contracts, and reaches tbe conclusion that bonds of this kind are construed as contracts of insurance, and not contracts of surety, bolding that tbe statutory provisions, articles 6244, 6245, 6251, R. S. 1925, wbicb relate to the rights of sureties, have no application to suits against sureties upon bonds of tbe nature here sued on, and cites tbe authorities in support of tbe conclusion reached. We adopt tbe opinion of Judge Leddy in tbe Southern Surety Company Case on this point; tbe conditions of tbe bonds being substantially tbe same.
Tbe remaining assignments of error, with the possible exception of one, challenge tbe sufficiency of tbe testimony to raise issues of fact, such as were submitted