On Motion for Rehearing.
A painstaking reconsideration has been given this cause, pursuant to invited arguments, both oral and in writing, from all parties; in these presentments both sides seem to be of the view that all the controlling questions in the controversy were involved in the original briefs and discussions, as well as in this court’s former opinion.
So regarding it from the appellate perspective, and, being still unconvinced of error in that disposition, it is determined that the motion should be overruled.
Appellant’s insistence on the rehearing that there was a fatal variance between the contract of employment as alleged by the appellee, and that found by the jury to have been made, is not thought to be sound; in this court’s view, the allegation that ap-pellee was employed “to act as broker for the purpose of entering into negotiations and effecting a sale to and with the Tidewater Oil Company” of the Krohn lease, and the jury’s finding that appellee was employed “to negotiate a sale of the Krohn lease to Tidewater”, upon which the claimed conflict is based, are essentially the same in meaning.
Furthermore, such a discrepancy between the pleading and proof, if it -can be said to exist at all, is not deemed to be legally material, in that it does not appear in the circumstances, among them that appellant apparently acquiesced in. a trial below upon the theory that there was no such evidence, that it was misled, surprised, or injured thereby; Morton Co. v. Dubuque Co., 287 Mass. 170, 191 N.E. 637; Allen v. Powell, 125 Ga. 438, 54 S.E. 137, 138; 3 Tex.Jur., Section 111, page 168; City v. J. J. & M. Taxman Co., Tex.Civ.App., 74 S.W.2d 524, 531, writ of error refused; Brotherhood v. Wood, Tex.Civ.App., 79 S.W.2d 665, 669; Southern Pacific R. Co. v. Kennedy, 9 Tex.Civ.App. 232, 29 S.W. 394; Coleman National Bank v. McDonald, Tex.Civ.App., 286 S.W. 487; City National Bank v. Penn, Tex.Civ.App., 92 S.W.2d 532; Walton v. Thomas, Tex.Civ.App., 84 S.W.2d 539; Parks v. Sullivan, Tex.Civ.App., 152 S.W. 704.
Moreover, the appellee did not limit its declared upon cause of action to the ex*564press verbal contract of employment alleged to have been made in January of 1934, but, in the alternative, further sought to recover upon quantum meruit; that declaration being based upon an alleged promise of the appellant, implied by law, binding it to pay for beneficial services the appellee alleged it had rendered it, which had been knowingly accepted. That a right of recovery, when predicated upon such facts, exists, is well settled. Page v. Estes, Tex.Civ.App., 142 S.W.2d 292; Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031.
It is the opinion of this court that the questions of fact, so alternatively declared upon, had sufficient support both in the evidence and the jury’s quoted findings thereon ; wherefore, the verdict would still have proper support, even should the finding of an express contract be discarded. The motion will accordingly be refused.
Refused.