On Motion for Rehearing.
Appellee in an able motion for rehearing very justly criticizes the reference in our main opinion to the statute of frauds as the basis of its objection to the evidence upon which appellant relies to sustain his contention that the original contract, under which he undertook to perform the work for appel-lee for the contract price of which this suit is brought, was subsequently changed by a new agreement increasing the compensation appellee was to pay for the work. Our statute of frauds is not involved in the case by the pleadings or by any proposition presented in appellee’s brief. The opinion shows that the rule of evidence invoked by appellee was the common-law rule adopted by our statutes (Rev. St. 1925, art. 8713), that “parol or extrinsic evidence is generally inadmissible to contradict, vary, or add to the terms of a written instrument,” and it was manifestly inaccurate to refer to this rule as being embodied in our statute of frauds, such reference was an obvious inadvertence on the part of the writer. With this acknowledgment of *481inaeearaey in our former opinion, we are constrained to adhere to .the conclusions that appellant was entitled to sue upon the written agreement executed by appellee increasing the compensation to be paid him for the work, and the parol evidence showing the consideration for such agreement as alleged in the petition and that the agreement, if proven as alleged, would be valid and binding upon appellee. This written agreement recites that “it was agreed and understood” between appellee and appellant “that if in the unloading and hauling of this material it developed you could not handle same at a profit in (for) the price of 40⅜ per ton, trial test to be made by you for a period of three weeks, then the Harbor Paving Company was to pay you a price of per ton for the unloading and hauling of said material.”
The parol evidence alleged shows that appellant objected to the compensation fixed for the work by the original agreement and refused to execute the agreement, and that as an inducement for his execution of the instrument the further agreement referred to in the letter of appellee increasing the amount to be paid appellant for the work was then made by appellee.
In this state of the evidence it cannot bé held that the agreement contained in the letter for an increase in the price to be paid appellant for the work was without consideration. Both parties were then acting in good faith, and, while the sufficiency of the pleadings upon the issue of fraud in obtaining the execution of the original contract may be doubtful, if the contract was sought to be set aside on that ground only, but when ap-pellee.by its letter ratified and confirmed this parol agreement, it accepted it as a good consideration for the change in the original contract. Having made the parol agreement and obtained appellant’s signature to the original contract as the consideration therefor, such parol agreement became a moral obligation and a sufficient consideration for the contract embodied in appellee’s letter.
In addition to this, as shown in our main opinion, ’ the contract for the hauling and spreading of the crushed stone and sand upon the designated streets was combined with a larger contract for the construction of curbs and gutters on the streets, and appellee by its written confirmation of the parol agreement increasing the compensation to appellant for the hauling and spreading of the paving materials before mentioned, received the benefit of all of appellant’s work under the entire contract. It raised no question of any want of consideration for the change in the contract until after the entire contract was completed and the work accepted and paid for by the city of Houston.
It solemnly agreed in writing that the additional compensation was necessary to enable appellant to make any profit out of his contract, and that it had agreed- with appellant that if a three weeks trial should demonstrate that he could not at the price named in the original contract derive any profit from his work it would increase the price to the amount stated in the letter. The agreement referred to in its letter was shown by the parol evidence to have been made before the original contract was signed, and to have been the inducement in obtaining appellant’s signature to the contract.
Upon this state of the record, we do not think there is any rule of law which requires ' holding that the change in the original contract evidenced by the letter written by appellee is unenforceable for want of consideration.
In our opinion none of the cases cited by ap-pellee require such holding.
We think the motion for rehearing should be overruled.
Overruled.