The opinion
On the Merits.
On February 10, 1912, we dismissed this cause, because the record failed to show jurisdiction to try the same on its merits by the county court of Sherman county, in a *750 written opinion'wherein we also referred, to irregularities apparent upon the statement of facts filed in the cause. Since that time, by proper proceedings, the record has been so supplemented as to show that the appeal from justice to county court had in fact been properly perfected, and proper transcript thereof is now on file in this court, and there has also been filed in this court an instrument, executed by counsel for appellant and appellees, showing that the apparent irregularities in the statement of facts, which consist in interlineations, were actually made before the statement of facts was agreed to and filed in the court below.
The record in this case shows that early in March, 1910, appellees, learning that appellant desired to have a well drilled on his ranch, approached him in the town of Strat-ford with a view of procuring the contract for drilling same; that appellees were willing to drill the well at 50 cents a foot for the first 200 feet and 75 cents per foot for all over that depth, provided appellant would board appellees and feed their team during the progress of the work. Appellant was willing to give 50' cents per foot for the first 200 feet and 75 cents per foot for all over that depth as a gross price for having the well drilled, but was not willing in addition thereto to board appellees and feed their team while the work was in progress.
[3] The record shows that as many as two conversations were had between appellant and appellees with reference to the matter, and that on each occasion they separated without agreeing on -any terms, each insisting that he was willing to do as above indicated, respectively; that at the conclusion of the last conversation appellees remarked to appellant that they were going to drill a well in his neighborhood a few days thereafter, and would call him up over the ‘phone again about the matter.; that about the 14th or 15th of March, 1910, one of the appellees did call appellant over the ’phone, and referred to their former negotiations, and told appellant they would be ready to begin drilling his well about the 17th of March following if he desired them to do so, and he told them to come ahead; that on the 17th appellant went to his ranch, expecting appellees to be there, but they failed to appear; that he went to Stratford, and found appellees with their machinery at the blacksmith’s shop, and inquired of them why they had not reached his place on the 17th, as they had agreed, and they explained to him that they were compelled to carry the machinery to the shop before beginning the work. During this conversation one of appellees asked appellant if he had prepared to feed them and their team, and he told them he had not, and would not do so, as he had not agreed so to do, and in fact told them that if they were going to require that ue feed, them and their team that he would not allow them to drill the well, as he had made no such agreement. Appellees made no further offer to drill the well, and appellant procured another to do so ; the well having been drilled a depth of 215 feet.
This suit was filed against appellant by appellees on allegations that appellant had employed them to drill his well at 50 cents per foot for the first 200 feet and 75 cents per foot for all over that depth, appellant to feed appellees and their team while performing the work, and a breach of said contract was alleged, and it was further alleged that they had failed to procure other employment during the time when they could and would have drilled the well, and prayed for damages in the sum of $111.50. A trial in the justice court resulted in a judgment for the amount sued for, which was duly appealed to the county court, where judgment was rendered in favor of appellees and against appellant for the sum of $50, from which appellant has appealed to this court and submits the case on eight assignments of error, all of which become immaterial under the view we take of the record, except one, which presents the issue that the testimony is wholly insufficient to show that any contract of employment was ever agreed upon between the parties.
We have carefully read the entire statement of facts under this assignment, and have reached the conclusion that the assignment is well taken, as we find nothing in the statement of facts warranting the conclusion that the appellees agreed to drill the well at 50 cents per foot for the • first 200 feet and 75 cents per foot for all over that, unless appellant fed them and their team during the time the work was being performed. Nor do we find anything in the record sufficient to support the conclusion that appellant ever agreed to feed appellees and their team during the time the work was to be performed, and as the feed of appellees and their teams was a material part of the contract, and the minds of the parties never met upon that issue, we think no contract was ever made, and therefore sustain the assignment raising this question. S. L. P. K. and Ladies of Honor v. M. A. Grace et al., 60 Tex. 569 ; Flomerfelt et al. v. Hume et al., 11 Tex. Civ. App. 30 , 31 S. W. 679 . As there was no contract agreed upon between the parties, and no service performed for which appellees would be entitled to recover on the theory of appellant having received the benefit of their services, and thereby becoming liable for the reasonable value thereof, and the case appears to have been fully developed on the trial, no good purpose could be served by the cause being remanded for another trial.
Because, in our judgment, under the entire record, no recovery could be sustained by appellees against appellant, the cause will be reversed, and here rendered for appellant; and it is so ordered.