On Petition to Behear.
The Executive Board of the Tennessee Baptist Convention, who was one of the appellees in this cause, has filed a petition to rehear complaining that the Court erred in holding that the original bill alleged sufficient facts to make a case of an implied contract between it and Mr. Delzell.
The petitioner makes the following contention:
“It is most respectfully, earnestly and urgently insisted that the Court may search the original till filed herein without finding a single allegation:
“1. That complainant had in any form or manner an express contract of employment; or
“2. That complainant had originally been hired for an annual period (or any other' definite period which *653was extended by implication, express action or failure to take action); or
“3. That hiring by the Executive Board was customarily on an annual basis or that it was a custom to hire the Brotherhood Secretary for annual periods. ’ ’
No one contends that there was an express contract of employment. The Court rested its decision upon the alleged custom and course of conduct of the Board in carrying on its varied activities, and that the facts stated in the bill made a prima facie case of an implied agreement that the complainant would hold the office of “Brotherhood Secretary” for the year beginning in 1954 and ending in 1955. The annual budget was considered as having an important bearing on this issue.
The original bill showed that an annual budget was adopted by the Board every year since 1949. The budget included the salary of the Secretary, expenses of the office, as well as providing funds necessary to carry on a yearly program, including the year, 1954-55. It is very true the budget did not mention Mr. Delzell by name, but only referred to him as Secretary of the Baptist Brotherhood. The original bill states that the Board allowed complainant to plan an entire year’s program for the Department. It is not a matter of dispute that the Board knew full well that Mr. Delzell was the Secretary and that he was the person whose duty it was to carry on the program. In these circumstances there is no merit in the contention by the petitioner that providing a salary for an office (annual salary of $6,300) would not impliedly bind the Board to fulfill its contract with the unnamed occupant of that office.
*654In further support of the insistence it is argued: “It seems clear that these engagements were for the occupant of the office of secretary hut in any event it is nothing more or less than future planning. It is an incident of employment * * *” (Emphasis ours.) We think it is not only an “incident of employment”, hut is material evidence to sustain the averment in the bill that there was an implied agreement; that the “planning” was to carry on and complete a yearly program.
The counsel for the Board has cited numerous cases in support of the Board’s theory. These cases and others were considered in the original opinion, and need not be again considered and distinguished from the rule followed by us as controlling authority.
With all deference to the petitioner and its counsel we feel that our original opinion is correct. The petition to rehear is accordingly denied.
Prewitt, Tomlinson and Swepston, Justices, concur. Burnett, Justice, did not participate in this case.