Lumpkin, J.
(After stating the foregoing facts.)
1. There was no error in overruling the demurrer to the petition of the plaintiff as amended.
2. A receipt for $1,750, signed by the’Citizens Bank, through its cashier, W. S. Stokes, to G. W. Boland, was offered in evidence. It contained the clause “to be held [in] trust to be paid to Uretta Boland on or before December 1, 1910, in compliance with an order of the superior court, same being in full settlement of suit filed for *435alimony.” This was admitted over objection. There was no error in this ruling. According to the evidence introduced on behalf of the plaintiff, he, his wife, G. W. Boland, and the defendant were all present in the bank closing up the transaction, and the giving of the receipt was a part of the res gestse. Evidence was introduced by the defendant, tending to show that no such promise was made as contended, but that the amount of money was deposited by G. W. Boland, and he or the plaintiff was to bring Uretta Boland to the bank to receive it. The paper also tended to conflict with certain of the evidence introduced by the defendant.
3. While, in one portion of his charge, the presiding judge stated that the first question was whether the defendant agreed to pay to Uretta Boland the $1,750, without expressly saying that the agreement must have been made with the plaintiff, yet immediately thereafter the judge, in effect, made the case turn on the questions of voluntary agency and gross negligence; and in that connection he distinctly submitted the question whether the defendant agreed with the plaintiff that he would see to the payment to Uretta Boland within the prescribed time. Upon the whole, it is highly improbable that the jury could have understood from the charge that the plaintiff could recover upon an agreement made by the defendant with any one but himself.
4. The contention of counsel for the plaintiff in error that the rule, that where mutual promises furnish the only consideration for a contract they must he mutually binding, was applicable or controlling, is not well founded. It was not contended that the consideration, if there was one, was of that character. And, as above stated, the case was made to substantially rest on the theory that there was no valuable consideration for the agreement, but that the defendant agreed with the plaintiff to render certain services as the'agent of the latter, and that he was liable for gross neglect as a voluntary agent. Civil Code (1910), § 3581.
5. The other grounds of the motion for a new trial are not meritorious.
Judgment affirmed.
All the Justices concur, except Fish, O. J., absent.