On Rehearing.
In the original opinion we said: “It seems evident to us that the purpose of such amendment [of exception 5 to the general rule of venue, Vernon’s A.C.S. Art. 1995, paragraph numbered 5] was to limit the application of exception 5 to suits upon contracts in which the written agreement to perform an obligation in a particular county is an express agreement; and, therefore, to exclude its application to suits upon contracts in which the obligation, if any, to perform in any particular county or definite place therein is only implied, even though such implication be a necessary one.” In the light of plaintiffs’ (appellees’) constructive criticism in their motion for rehearing, said language appears to require some clarification. We may have assumed that only in the express obligations of a written contract could there be found, expressly named in the writing as required, the county, or definite place therein where-the obligation of the contract was agreed to be performed. If so, such assumption, we now think, was not warranted.
If a contract imposing implied obligations expressly provides that all obligations shall be performable in a named county, or definite place therein, then, perhaps, so far as affects the question under consideration, there would be no difference between an implied obligation and an express obligation. Granting this, then the question at issue is, of course, not concluded by the fact that the only obligations sought, by the suit, to be enforced are implied obligations. The issue is concluded, however, we think, by the further fact that the contract here involved contains no provision “expressed in writing” to the effect that any obligation, expressed or implied, shall be performed in Jones County. Upon this decisive fact we rest our conclusion that venue of this suit was not sustained under said exception 5.
The defendant argues this further question (stated in our own way), which we did not discuss in our original opinion. Even if the contract did contain an express provision to the effect that all obligations were to be performed in Jones County, which would include the alleged implied obligations ; or, if we be in error in concluding that the contract contains no such express provision, would not the implied obligations here involved be implications of law and not of fact, and, therefore, their existence not be established by evidence consisting only of the terms of the lease?
We are cited to authorities which seem to us to establish the proposition that the alleged duties or obligations (called implied covenants) of the lessee of an oil and gas lease to exercise reasonable care and prudence to protect the lease from offset drainage; or, once production has been obtained, to develop the lease with reasonable care and diligence, arise only as implications, not of fact, but of law. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S. W.2d 27; 2 Summers Oil & Gas, p. 301, § 395; Law of Oil & Gas by Mills & Willingham, ch. 11, p. 130; Gulf Prod. Co. v. Kishi, 129 Tex. 487, 103 S.W.2d 965; Grubb v. McAfee, 109 Tex. 527, 212 S.W. 464.
The implications, therefore, do not arise merely from the provisions of the lease. The duty, if any, to drill an offset well did not arise until drainage had commenced, or, at least, until there was an immediate pros*1010pect of drainage. Of such drainage or prospect there was no evidence. No duty extending to the drilling of additional wells could be shown to exist in the absence of evidence showing, for example, the nature and extent of existing production, or other such facts, none of which was in evidence in this case. The meagerness of evidence outside the provisions of the lease, taken in connection with the lease, forces the conclusion, we think, that the evidence was insufficient to raise as an implication of law and show any duty on the part of the defendant to drill an offset well, or additional wells. The fact of the existence of such duty, if any, not appearing from the terms of the contract, or any other evidence introduced, leaves no escape, we think, from the conclusion that, even under the contingencies mentioned, the evidence as a matter of law failed to show a contract obligation expressly providing that any obligation of the lessee, express or implied, should be performed in Jones County.
Unless answers by the Supreme Court to certified questions shall require a different disposition of plaintiffs’ motion for rehearing, this opinion, now tentatively rendered for the information of the Supreme Court, will be made-the opinion of this court disposing of such motion for rehearing after receipt of such answers.