On Appellees' Motion for Rehearing. Appellees have filed a very able and exhaustive motion for rehearing. In consequence we have given careful reconsideration to the entire record. Three main contentions are particularly emphasized in said motion: 1. That we erred in holding the contract between Trapp and the Humble void and unenforceable because of its being too uncertain and indefinite. 2. That even if unenforceable while executory, it had been fully performed by Trapp by dismissal of his cross-action in such former suit; and consequently the Humble is estopped, having received the benefits thereof, to assert its invalidity. And 3. That we erred in holding that Humble was not guilty of such laches as to bar recovery by it.
We deem it unnecessary to discuss further the enforceability of the contract asserted. If it be conceded that after the contract found by the jury to have been made had been performed by Trapp the Humble was estopped to deny its validity, it still would not apply to the lease here involved. The contract was oral, made over long distance telephone, some eight years before the trial. The recollection of the parties as to details was necessarily not fresh in the minds of the parties. While Trapp did testify that his impression at the time was that it was broad enough to include not only then owned leases, but those subsequently acquired, he admitted that nothing was said about after-acquired leases. In addition to the testimony quoted in our original opinion, he made the following statement upon cross-examination: "The only limitation on it was the extent of my interest was limited to the East Texas field at that time." While Trapp did testify that he owned the lease in question when said contract was made, he was obviously in error. The assignment of said lease to Trapp and Blankenship was in evidence and was dated November 1, 1937, some six months after the contract was made. Consequently, under Trapp's own testimony and the assignment itself, the lease here involved was excluded from the terms of the contract, and so far as the permit here attacked is concerned, it becomes immaterial whether Humble breached it or not.
Hence he is relegated to the issue of laches predicated upon Humble's delay. This we have discussed fully in our original opinion. It is clear, we think, from the rules announced in numerous authorities that the delay complained of must have *Page 789 induced the complaining party to act; and that such action by him must have resulted in injury. Trapp himself testified that he acted upon the faith of his contract with Humble; and that he would have done the same thing regardless of whether such suit had been filed immediately. Hence such delay did not induce him to act. What, then, was his injury? Appellee contends that if Humble had acted promptly he would have been saved at least a part of the expense of completing and casing his well; and that to invalidate the permit now would result in a loss to appellees of the value of their well. However, because of the immediate and determined action of Trapp in drilling said well, in sole reliance upon his agreement with Humble, and the compliance with Sec. 10 of Art. 6049c, Vernon's Ann.Civ.St., which must be had before ancillary relief by injunction could have been obtained; and Trapp's own testimony that a suit to set aside said permit would not have stopped him from continued drilling; his contention is, we think, clearly untenable. He would and could have completed the well in any event before the Humble could have stopped him by promptly filing such suit. And, had it done so, under the conclusions compelled by the evidence, that, as a matter of law, his permit was invalid, the result would have been that he would have suffered the loss of all moneys expended by him in drilling under such invalid permit. In contemplation of law then he has, we think, suffered no damages by Humble's delay which he would not have suffered in any event.
The motion for rehearing is therefore overruled.
Overruled.