In our previous dissent, we did not dispute the correctness of the majority's conclusion, now modified, that a contract of the kind approved by the United States Supreme Court in the language quoted from the opinion in Tennessee C., I. R. Co. v. Muscoda Local 123, 321 U.S. 590, 64 S. Ct. 698, 88 L. Ed. 949, 152 A.L.R. 1014, would be invalid if the overtime actually worked exceeded that estimated, regardless of the difficulty of computing same. In view of the language quoted from that opinion, however, it now seems that this conclusion of the majority was open to challenge and remains so.
We do not deem the practice question which influences the majority to disregard the suggestion of this quoted language from the United States Supreme Court, as sufficient to require us to disregard it as lending support to the theory of estoppel discussed in our former dissent. The appellees' own testimony corroborates what is otherwise undisputed that the hours of employment were so fluctuating and uncertain as to make it quite impossible, as a practical matter, to accomplish any precise computation thereof. A finding of fact to such effect not only would rest upon abundant support in the evidence but would merely declare what was undisputed therein. We, therefore, should not ignore on the issue of estoppel, with or without a specific finding, what stands out so clearly as an unchallenged fact in explanation of the hours of overtime agreed upon as an approximation, fair and reasonable, in lieu of their exact computation. Tennessee C., I. R. Co. v. Muscoda Local 123, supra. Certainly, this consideration affords additional support for the estoppel made the basis of our previous dissent.
We think a rehearing should be granted and dissent from the action of the majority in ordering otherwise. *Page 353