*429On Appellee’s Motion for Rehearing.
Appellee files an insistent motion for rehearing and directs most of it to an unfortunate expression in our' original opinion, as follows: “Where a plaintiff seeks to recover the full damages he would have received had he completed the contract and acknowledges that he did not complete the contract, he must show that the failure to complete the contract was due entirely to the fault of the defendant, and that during the interim of his enforced delay he used all reasonable effort to get other employment.”
He cites the ease of Mansfield Mill & Elevator Co. v. Nichols (Tex. Civ. App.) 205 S. W. 746, 747, where an exception was urged to the insufficiency of appellee’s petition on the ground that it made no allowance for sums which appellee earned during the discharge period; the exception stating that, if such allowance had been made in good faith, the amount in controversy would be below the jurisdiction of the district court. The Court of Civil Appeals said: “This exception was properly overruled. In this state- it is now settled that the burden both of allegation and proof rests with the defendant in an action for damages for wrongful discharge of a servant, to show that the plaintiff has been engaged in other profitable employment’. * * * ¶¾⅛ holding is in line with the great weight of authority in this country, although the courts of some of the states hold to the contrary.”
We withdraw the statement to the effect that the plaintiff must show that the failure to complete his contract was due entirely to the fault of defendant “and that during the interim of his enforced delay he used all reasonable effort to get other employment.” It appears, as claimed by appellee, that in Texas, at least, the burden of allegation and proof that a discharged employee by reasonable diligence could have secured other employment, or that he did secure other employment, is upon defendant by defensive pleading and proof. But in the instant case plaintiff sued on the contract upon the theory that he had fully performed said contract and therefore was entitled to the gross contract price, predicating his action upon the allegation that by the contract appellant had agreed to pay him the gross contract price of $5,000, regardless of the depth to which he drilled the well. The jury found in response to special issue No. 8 that it was within the contemplation of the parties to the contract, at the time it was made, that appellee should be paid the gross contract price of $5,000 only in the event he drilled the well to a depth of 3,500 feet or procured oil and gas in paying quantities at a less depth; there being neither allegation nor proof by appellee of any damages resulting from breach of the contract declared upon, his suit being based upon the theory that he had fully performed his contract and was entitled to the balance due thereon.
“A person who has- been stopped in the performance of a contract by the default or by the direction of his employer, is entitled to compensation for the losses he sustains; but ¡he is entitled to compensation only, and not to the gross amount he would have received from his employer had the contract been fulfilled.” Porter & McMillan v. Burkett, 65 Tex. 383.
The motion for rehearing is overruled.