ON REHEARING
Appellant and appellee have each filed a motion for rehearing.
In its motion appellee disagrees with our statement with reference to the transfer receipts where we said, “If any of the provisions of the alleged receipts must be supplied by parol, the contract is an oral contract.” We must admit that the statement is not well phrased and requires clarification and amplification.
As pointed out in our original opinion appellee does not rely on all the provisions of the receipts. Notwithstanding the fact that the receipts call for rentals at the rate of $8.00 per day for the first fourteen days and $10.00 per day for each day thereafter, appellee presented testimony that the agreement was that only $8.00 per day would be charged regardless of the length of time appellee might retain possession of a leased trailer. Appellee cannot be permitted to accept the favorable terms of the written documents, but reject the unfavorable terms. There is no pleading or claim of fraud, accident, mistake, or ambiguity in regard to the written receipts. In the absence of such pleadings the parol testimony would not properly be admissible to support appellee’s contention, for such testimony would amount to an attempt to vary the terms of a written contract by parol evidence.
Is there any theory or circumstance, then, under which such parol evidence may properly be received? Any oral change in a written contract, if permissible, constitutes a modification of the written contract and really amounts to the making of a new contract which is oral.
Our view is well illustrated by the situation presented in Luglan v. Tomlin, 287 S.W.2d 188, cited in our opinion. The San Antonio Court of Civil Appeals, speaking through Chief Justice Murray, said:
“The general rule is that where a contract is not required to be in writing the parties may subsequently enter into an oral contract modifying and changing the terms of the written contract. The written contract is thereby rescinded and the rights of the parties are thereafter determinable by the terms of the subsequent oral agreement. (Citing authorities)
“Here the original plans and specifications were changed to such an extent that a new plan had to be drawn, but the specifications were not re-written. Oral agreements for the changes in the specifications were relied upon. Under such circumstances the contract becomes an oral one and any claim arising under such a contract is governed by the two-year statute of limitation.”
Appellee next complains of our holding that there was no evidence that Strickland was a party to the alleged oral agreement between Merchants, Garrett and Navajo whereby Merchants’ trailer No. 1A32 was to be turned over to Garrett, then to Navajo, then to Strickland, in lieu of trailer 813. Appellee contends that Exhibits Nos. 13 and 10 are evidence that Strickland was a party to the agreement.
Exhibit No. 13 is a letter written by Jack Johnson, cost accountant of Navajo, to George E. Wiard of Merchants. In the letter Johnson tells Wiard of Merchants that Strickland was a party to the agreement. The letter is hearsay and amounts to no evidence at all to support appellee’s view even if admitted without objection. Texas Co. v. Lee, 138 Tex. 167, *730157 S.W.2d 628, 631; Emerson v. Mills, 83 Tex. 385, 18 S.W. 805; Williams v. Thetford, Tex.Civ.App., 301 S.W.2d 954. It is not a letter from or by anyone connected with Strickland, so it cannot be construed as an admission. Warren v. Fredericks, 76 Tex. 647, 13 S.W. 643, 645; Burleson & Baker v. Sugarland Industries, Tex.Civ.App., 240 S.W. 669; 31A C.J.S. Evidence § 321, p. 816.
Exhibit No. 10 is a letter from John W. Maxwell, general manager, of Strickland, to Robert L. Cohen, vice-president of Navajo. In this letter Maxwell states:
“In the third paragraph of your letter, you state that I was contacted and agreed to accept this trailer /trailer 1A32/ in place of 813. This is not so. I was not contacted nor can I find anyone else in our general office who was contacted about this.”
Appellee further says that we erred in not holding that the 813 bailment contract terminated because of the impossibility of performance by Navajo. The basis of this claim is this: since Strickland had already received trailer 813 from Merchants in a transfer there was no way possible for Navajo to redeliver 813 to Strickland.
It is in the record that the master contract provided for the return of the leased trailer, or the delivery of another trailer acceptable to the lender in lieu of the original trailer. We cannot say that the evidence in the record before us would support a holding as a matter of law that it was impossible for Navajo to have tendered some trailer other than 813 which would have been acceptable to Strickland in lieu of 813. Therefore we cannot say as a matter of law that the contract in question terminated because of the impossibility of performance by Navajo.
Appellee attacks our holding that appellee was in no position to stand on the A.T.A. regional contract to support the application of the four-year statute of limitations. Appellee is relying on a reference in the transfer receipts to the A.T.A, regional contract. As indicated in our discussion of the receipts earlier in this opinion, it is our view that in the present state of the record appellee cannot rely on the receipts as written contracts. For the reasons there stated we hold that the A.T.A. contract when incorporated into an oral contract by reference cannot make the four-year statute applicable.
Appellee urges us to “give some guide lines, rather than leave unanswered, the question of the maximum recovery to which Strickland would be entitled.” We cannot comply with appellee’s request. We do not know what answers may ultimately be found to the fact questions presented by the present record; nor can we anticipate what amended pleadings may hereafter possibly be filed, or what additional testimony may possibly be presented in another trial. In the absence of such information we shall not attempt to say what course or courses this controversy may or should take.
Appellee in another point says we should not assess all the costs against ap-pellee since we affirmed in part and reversed in part. However, we must point out that we affirmed only that part of the judgment denying appellee a recovery on its cross-action claim in regard to trailer No. 57 and reversed the part of the judgment awarding any recovery against Strickland.
Appellee’s motion for rehearing is overruled.
We have considered all the matters presented in appellant’s motion for rehearing. Appellant’s motion for rehearing is overruled.
Overruled.