On Appellant’s Motion for Rehearing.
Appellant insists upon a discussion of several assignments of 'error presented in its original briefs, which were heretofore duly considered and overruled without a discussion of them, as we deemed that unnecessary.
[11-14] One of those assignments was addressed to the refusal of a requested peremptory instruction that Pagenkopf had no legal authority from the defendant company to bind it by the contract to pay Gordon $25 per day for the 56 days he waited to rig up his machine after he had moved on the lease. Our conclusion, already expressed, that his authority to make such an agreement was conclusively established by the evidence is an answer to that assignment. The proposition submitted under that assignment that the agreement was without consideration is not germane to the assignment, although it is presented under another assignment to the judgment. Furthermore, there was proof to show a sufficient consideration in the testimony of Pagenkopf to the effect that Gordon moved his rig on the lease when *950directed to do so by Pagenkopf; that the delay in rigging up was due to no fault of Gordon, but to litigation against defendant company by others; that Gordon was propos-' ing to move .to another lease, -where he wa¿ offered drilling work and was prevailed on byl Pagankopf to remain, as the latter was daily expecting the well to be ready for Gordon’s' work to begin, and that in obedience to that request Gordon remained. The fact that Pagenkopf did not agree to pay $25 per day for the delay until after the delay had occurred did not show that the promise was without consideration, since.a sufficient consideration had already passed. After moving on the lease at Pagenkopf’s request, certainly Gordon was not required, under his contract, to wait indefinitely and for an unreasonable length of time to rig up his machine and begin drilling. The parol contract to pay $25 per day for the delay in starting work was subsequent and supplemental to the written contract sued on, and hence proof ox it was not subject to the oDjection that it was violative of the best evidence rule,-' as contended in another proposition submit-' ted under the assignment now under discus-1 sion, although that proposition likewise clearly is not germane to the assignment. 6 R. (J. xj. p. 674, par. 82.
Several other assignments áre presented to the failure of the court to submit to the jury issues of Pagenkopf’s agency to make the different contracts sued on. There is no merit in any of those assignments, since those issues were submitted, and the jury returned findings thereon favorable to the plaintiff.
[15] There was no error in refusing to submit the requested issue whether or not ■Gordon drilled the well on defendant’s lease in a skillful and workmanlike manner, since there was no evidence to show that he failed to do so. The testimony urged by appellant, to the effect that after plaintiff had drilled a short distance into the sand and the well had produced 20 barrels per day, other drillers drilled it deeper and found a greater quantity of oil, did not tend to prove that the work performed by Gordon was done in an unskillful manner. In fact, there was no contention that defendant demanded that the well be drilled deeper.
[16] Complaint is made of the refusal of the court to submit two special issues requested by appellant, one being whether or not Gordon worked with the standard rig on the lease from August 9, 1919, to October 4, 1919, as alleged in plaintiff’s petition; and the other being whether or not Gordon worked and performed labor with both of his rigs on the lease from October 5, to November 6, 1919, as alleged in plaintiff’s petition. The proof was uncontroverted that plaintiff did not perform actual work with the two rigs during the entire periods mentioned in those issues; and, if those were controlling issues, appellant was entitled to a peremptory instruction thereon for findings in accordance with the uncontroverted proof. It is true that plaintiff did allege the performance of work with two rigs, as stated in the two requested instructions; but the following facts were established by the uncontradicted testimony of both plaintiff and Pagenkopf: In obedience to Pagenkopf’s instructions, plaintiff moved his rig on the lease June 14, 1919. One Goldman was then working on a well on that lease and had drilled it to a considerable depth, but the same had. not been finished, and Pagenkopf’s purpose in employing plaintiff was to have him finish that well as soon as he could get Goldman to move off. Drillers were hard to find in that field, and it was Pagenkopf’s desire and intention to make sure of plaintiff’s services as soon as Goldman should leave the well and give plaintiff an opportunity to rig up his machine and begin work. While plaintiff was waiting to do the work he had offers from other persons to do drilling on other leases. ,He informed Pagenkopf of these offers and of his desire to accept same, but at Pagenkopf’s solicitation he was induced to wait on Goldman for the full period of 56 days, after the termination of which period Goldman moved off the lease. Immediately thereafter plaintiff moved his standard rig to the well, and upon Pagen-kopf’s order began to rig up, preparatory for drilling work, employing the services of several men in order to do so. But he never finished rigging up on account of certain litigation which had been instituted against the defendant by others, and for which he was in no manner responsible. That litigation was the only reason for his failure to finish rigging up the standard machine and proceeding to drill with it. Notwithstanding that delay he, with his employes, to whom, he paid high wages, was kept on the lease at the request of Pagenkopf, who later decided to use a star drilling machine, and, in order to induce plaintiff to purchase and use one, agreed to pay him $75 per day for the use of it, in addition to $125 per day for the standard machine. During that period defendant was endeavoring to sell the lease, and had procured a prospective purchaser, who had agreed to pay several hundred thousand dollars for it, and the chances to sell would be increased if the well proved to be a good producer. When the star rig was engaged, one Miller had agreed to purchase tne lease from defendant, and he joined Pagenkopf in making the contract for use of that rig, but his contract of purchase was abandoned by him, and he had nothing further to do with the lease of the drilling operations, which were solely under active control and management of Pagenkopf for the defendant. Under such circumstances, the findings of fact sought by defendant by the two requested instructions mentioned *951above would not have defeated plaintiff's suit under the contracts alleged and proved.
In addition to the facts recited above, aftJ er the employment of plaintiff. had terminated, Pagenkopf, as the representative of defendant company, gave to plaintiff a written statement, acknowledging defendant’s indebtedness to him for the full amount claimed in the suit, on the claims herein asserted.
[16] The trial having been upon special issues submitted to the jury, and there being an absence of any finding by the jury that plaintiff complied with his obligations under the contracts sued on, and both parties having failed to request the submission of that issue to the jury, the judgment rendered in plaintiff’s favor necessarily imports a finding by the trial judge that he discharged the obligations assumed by him by the contracts sued on in a manner satisfactory to the defendant. And appellant has presented no specific assignment of- error to that finding of fact.
[17] Furthermore, the facts recited above, showing partial performance by plaintiff of his drilling contracts, his tender of full performance, with ability and readiness to make good the tender, and the reasons why hej failed to specifically and fully perform them, and the acceptance by defendant’s general manager and agent of the tender and services rendered as a full satisfaction of plaintiff’s obligations, were all established by uncontroverted proof, and under such circumstances it conclusively appears that plaintiff was entitled to recover the contract prices for said work. 9 Cyc. 646, 688; 1 Williston on Contracts, 677, 687, 688.
Appellant’s motion for rehearing is overruled.