On Motion for Rehearing. The questions in this case are difficult and have been presented forcibly in behalf of appellants by their able counsel, and we are by no means sure that we can materially add to the conclusions and implications of our original opinion. We will, however, briefly present a view not heretofore specifically referred to, to wit: If it be admitted, as is so ably and forcibly urged in behalf of appellants, that the original contract of sale was in all particulars fully executed prior to the execution of the new agreement upon which appellee declares, and that hence in order for the new agreement to be enforceable it was necessary that it be supported by a consideration, and further that a consideration must also be shown for the waiver of the original agreement on appellants' part, if any, and that the principles of estoppel are not herein available to appellee for want of pleading, it nevertheless appears, inferentially at least, from appellants' letter attempting to cancel their original order, as also from evidence presented on the trial, that between the date of July 30, 1920, when the order for the seed was executed, and the date of the attempted cancellation, to wit, September 27, 1920, that because of a failure in crops and a consequent inability to sell the cotton seed in question to those whom both parties knew they were to be supplied, the enforcement of the original contract would be oppressive because of the changed conditions. If so, and both parties with knowledge of the changed conditions assent to a modification of the original agreement, then, at least by some of the authorities, there is a sufficient consideration to support the modified contract.
It may be said that this principle has not yet been very clearly defined in our decisions, but it is distinctly recognized in some of them at least. For instance, the case of City of Galveston v. Galveston City R. Co., 46 Tex. 435, was one in which by the terms of the contract between the city and the railway company the latter was required to *Page 510 "construct and keep in good repair all cross-culverts, whenever the same may be required under their rail tracks," and the city, among other things, alleged that in this particular the railway company had defaulted to the damage of the city. Upon this phase of the case the Supreme Court had this to say:
"While the company was required by the original contract to construct and keep these culverts in repair, they were subsequently relieved by the city from this undertaking, by an ordinance, in almost as plain and unmistakable terms as the original contract. That such is the obvious import of this ordinance, is not denied by counsel for appellant. It is insisted, however, that it is inoperative and void for want of consideration. But if we were to concede that the city received no valuable consideration for it, we do not perceive how it could affect this case. Certainly the city, if it saw fit to do so, might release the company from the performance or fulfillment of an undertaking such as this, which, at the time of the release, was altogether in futuro, and upon which, therefore, there had been no default. If a contract has been obtained by mistake, or if, through change of circumstances, it is deemed to operate oppressively, an agreement to make an additional compensation, or to annul or modify it, is not, as is well settled, invalid for want of consideration. (1 Dillon on Municipal Corporations, § 395.)"
In Foley v. Storrie, 4 Tex. Civ. App. 377, 23 S.W. 442, by the Austin Court of Civil Appeals, the plaintiff agreed to deliver to the defendant so much wood, at an agreed price per cord, by April 1st. On March 28th the plaintiff wrote to defendant that in view of the wages he had then to pay, he must ask for a better price for the wood. The defendant answered that he would pay him a certain advanced price per cord, and requested him to hurry his shipments. It was held that the modification of the contract was not without consideration.
In the case of Washington Life Ins. Co. v. Reinhardt, 142 S.W. 596, by the Dallas Court of Civil Appeals, it was said, among other things, quoting from the headnote, that —
"Where, owing to new legislation, by mutual understanding between a life insurance company and its general agent, it gives up its business in the state, and he loses the profits on business which he would have written had it remained in the state, and agrees that for renewal premiums thereafter contracted by the company on policies theretofore written by him his commissions shall be a certain amount less than stipulated in their antecedent contract, such new contract is supported by sufficient consideration."
In Hinton v. D'Yarmett, 212 S.W. 518, by this court, it was held that where an owner of oil leases assigns shares of stock and his interest in certain oil leases in consideration of assignee's agreement to drill a test well, and purchaser from assignee of an interest in the contract assumes obligation of drilling well, but after commencing work refuses to continue, whereupon the contract is modified so as to permit owner himself to drill well with equipment furnished by such purchaser, the preceding contracts and proceedings constitute a sufficient consideration for modified contract.
In the case of Ross v. Moore, 191 S.W. 853, writ of error refused, this court held that where a broker and owner entered into a contract to subdivide and sell lots at a certain price and for a certain commission, the fact that the lands were not being sold as rapidly as desired was a sufficient consideration for an oral modification of the written contract in order to facilitate the sales.
In Cooper v. McIlwain, 58 Ala. 296, it was said:
"There can be no doubt that the parties to a contract may rescind or modify it, at [their] pleasure; and their mutual assent is all that is necessary to support the modification or rescission."
There was evidence in this case tending to show that the cotton seed in question were of an improved variety, priced above that of ordinary varieties, and that appellants were desirous of having them introduced in the section where appellee was engaged, and that with full knowledge of the fact that they had theretofore in accordance with the written order delivered the cotton seed upon the cars at Lockhart and thus, as appellant now insists, fully completed the contract on their part, they voluntarily executed the written modification of the original contract upon which appellee acted. Thereby appellants thus immediately secured the case price charged for their seed, avoided possible costs and delays in prosecution of other remedies, and endeavored to establish a market in new territory for their product. Appellee on his part accepted the modified agreement and acted thereon by paying interest above its legal rate in order to at once supply the purchase money; he stored the seed as directed, insured them, and made special effort to sell them, as he might not have otherwise done.
So that we conclude, on the whole, that there was a sufficient consideration for the modification of the contract, and the motion for rehearing will, accordingly, be overruled. *Page 511