The opinion
*751 On Rehearing.
On April 6, 1912, this cause was by this court reversed, and judgment rendered for appellant, and the case is now before us on a motion by appellees for rehearing, wherein it is insisted, first, that the judgment of the trial court should be affirmed; and, second, if the judgment of the trial court is not affirmed, that the cause should be reversed and remanded because of the want of specific evidence in the statement of facts, showing just what took place between the parties and what was said by them respectively over the ’phone at the time it is claimed by appellees the contract sued on was made.
[4] In deference to the earnestness with which appellees’ counsel has pressed the second ground in their motion for a rehearing, we have again carefully read and considered the entire statement of facts, and while we still adhere to our former conclusion that the statement of facts is wholly insufficient to sustain the judgment rendered below, we have reached the conclusion that, because of the uncertainty of what was actually said by the appellees and appellant during the ’phone conversation (said uncertainty arising from the apparent abbreviations in the statement of facts and not from any conflicts in the evidence), we have concluded that perhaps the ends of justice will be better served by granting the motion for rehearing, setting aside our former judgment, and reversing and remanding the cause.
If any contract was actually made by ap-pellees with appellant, it resulted from the ’phone conversation, and the only evidence found in the statement of facts tending to show the terms of the contract agreed on, if any, is found in the evidence of W. O. Alexander, one of the appellees, where this language is used: “Yes, on about the night of the 15th or 16th of March, 1910, I called up Mr. Simpson from Brown’s drug store at Stratford, by ’phone, and [reminded] him of the talks he had had with us about drilling his well, and I told him if he said so we would be out there and go to work on the following Friday, the 17th, or as soon thereafter as possible, and Mr. Simpson said, ‘Come ahead.’ ” From this it will be seen that this court is not informed from the statement of facts as to what was actually said between the parties as to the terms on which the well was to be drilled, and ps the rights of the parties to this suit depend absolutely on what was said in that ’phone conversation, we have concluded that justice demands a reversal of the cause, to the end that this issue may be more fully developed on another trial. Clark et al. v. Cummings, 84 Tex. 610 , 19 S. W. 798 ; Gunter v. Armstrong, 2 Tex. Civ. App. 599 , 21 S. W. 607 .
For the reasons given, the motion for rehearing is granted, our former judgment reversing and rendering the cause for appellant is set aside, and the judgment of the trial court will be reversed, and the cause remanded, and all costs of this appeal taxed against appellees; and it is so ordered.