ON REHEARING
DIXON, Chief Justice.Both appellant and appellee have filed motions for rehearing.
In appellee’s motion he cites the cases of Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856 (see also Tex.Civ.App., 243 S.W.2d 464 for additional facts) and Texas Employers Ins. Ass’n v. Locke, Tex.Civ.App., 224 S.W.2d 755 in support of his contention that appellant failed to use due diligence to procure the testimony of the witness Housman.
We do not disagree with the holdings in the above cited cases. Without giving a detailed statement of the facts presented in them we shall simply say that we are of the opinion that the factual situation in the cited cases distinguishes them from this case.
Housman participated in the negotiations which culminated in the contract before us. He resides in the State of Massachusetts. Appellant asked only for a postponement of two weeks to arrange for the presence of Housman. It did not ask, as did the appellant in the Fritsch case, for an indefinite adjournment of the trial until it could obtain the missing witness. There are other extenuating circumstances, but we shall not expand this opinion by further particularization.
Since we take the view that the contract in question is ambiguous, it was necessary for us to reverse the judgment regardless of any holding we might make in regard to appellant’s motion for continuance. The issue of the motion for continuance is only secondary under the circumstances. If no point were presented in regard to the motion for continuance it would still have been necessary for us to sustain appellant’s second point in view of our conclusion that the contract is ambiguous.
*742Furthermore, if appellant had acted with all the diligence which appellee would require it would have availed appellant nothing. For the trial court held that the contract is not ambiguous, therefore extrinsic testimony as to the intention of the parties would not have been admitted. If Housman had been present he would not have been allowed to testify. If his deposition had been taken and had been available it would not have been considered. Under such circumstances Housman’s presence in person or by deposition would have been a vain and useless thing.
In its motion for rehearing appellant reiterates its claim that the contract is not ambiguous, and does not contain any agreement by appellant, as alleged by appellee, that appellee in the course of the duties of his employment would at all times be located in Texas. We still believe the contract is ambiguous.
Both motions for rehearing are overruled.
Overruled.
BATEMAN, J., not sitting.