On Motions for Rehearing.
Both appellants and appellee in their motions for rehearing urge that the trial court’s judgment embodies at least six severable and distinct causes of action, the appellants insist that as to some, if not all, the trial court’s judgment, under the jury findings or the undisputed facts, or both, should be reversed and rendered; and appellee insists that as to some, if not all, the trial court’s judgment should be affirmed; and that instead of a remand generally, the issues should upon such remand be limited only to those not already properly and finally adjudicated, as authorized by Rule 434 of the Texas Rules of Civil Procedure. This, manifestly, in the interest of economy of time and labors of the trial court, and costs to the litigants. We have so concluded, have accordingly re-examined the record, reconsidered the items involved, and so modify our former order herein.
Considering first the item of $34,175.37, the aggregate as shown by appellants’ books of costs of construction of the several jobs involved, for which Brown & Root could produce no invoices bearing Neyland’s OK, we see no reason why it should again be litigated. It involved an extensive examination of the books of appellants, detailed items charged and the testimony of the auditor and the bookkeepers with reference thereto. Neyland testified that he Oked all cost items for such jobs, and the bookkeepers testified that they entered no items as costs which did not bear his OK. The jury found obviously upon this testimony that all items charged on appellants’ books were actually used in such construction in these several jobs. The mere fact (relied upon by appellee as not affording proof to sustain such finding) that some items were charged to one job which should have been charged to another, and that some did not specifically indicate the exact material, labor, etc., they represented, does not detract from the jury finding, nor does it *848prejudice the rights of appellee. His interest in all of these jobs was the same,— to participate in the profits therefrom. If all of these items, as the jury found, constituted costs of construction, they could not constitute profits, and a failure to properly allocate them on the books of appellants to the different jobs, cannot make them so. Under the jury finding, therefore, appellee was not entitled to credits of them as such.
On the $12,837.36 item we have, upon a re-examination thereof, concluded that we were in error in holding that the jury finding in answer to special issue No. 3, that Brown “agreed” to credit Neyland with one-half of same was not sustainable for the reason that only an “implied agreement” was pleaded. It is not controverted that after Brown had turned this claim against the State over to Neyland to collect, and Neyland had undertaken to do so, Brown requested him to discontinue such efforts. Under the facts proven, it is clear, we think, that Brown & Root, under the cases cited in our original opinion, could not have enforced collection thereof. But if they agreed with Neyland to credit him with one-half of same on condition that Neyland abandon all efforts to collect same, they would be bound by that agreement. Neyland testified that he made such demand, and that Brown replied, “Well, if that is what it had to be, that would be the way it would have to be.”
While only an implied agreement was pleaded, no objection was made by appellant to the issue as submitted, nor any request made to define the term “agreed” as used therein. The appellee pleaded the facts relied upon as constituting such implied agreement. If the minds of the parties met, if Brown assented to Neyland’s demand, then a contract resulted. If the facts were such that the law implied an assent, then an agreement resulted which would-hind Brown & Root as effectively as if express assent had been given. While confusion has resulted from failure to distinguish between contracts “implied in law” and contracts “implied in fact,” it now seems clear that the only distinction between express contracts and contracts implied in fact is in the character of proof required to show how mutual assent is manifested. The determining factor therefore is whether such agreement is made, not how it is arrived at. Miller v. Miller, Tex.Civ.App., 292 S.W. 917, writ refused; 12 Am.Jur., § 4, p. 498; 17 C.J.S., Contracts, § 4, p. 317. In the absence of any objection to the issue as submitted or of any request for definition or explanation of the term “agreed” in the light of the evidence; we have concluded, upon reconsideration thereof, that under the issue as submitted the jury could find, from the language and conduct of the parties, that such agreement was made..
On the issue of limitation pleaded by appellants as barring Jleyland’s recovery under such a contract, we adhere to the conclusions reached in the original opinion. See 28 Tex.Jur., § 61, p. 144; 34 Am. Jur., § 230, p. 186. The trial court’s judgment as to this item should therefore be sustained.
As to- the $5,000 item, if, as alleged, ap-pellee had expended such sum, and could make proper proof thereof, outside of the terms of his contract with Brown & Root, and on other work than that included in the terms of such contract, it could not, of course, be charged as costs of construction of the jobs covered by the contract, nor included therein for purposes of arriving at profits therefrom. Since the trial court overruled appellants’ exception to the insufficient pleadings, and appellee was not given an opportunity to amend such pleadings, he should upon reversal be given an opportunity to do so.
On the item of overhead expenses, the finding of the jury that Brown & Root included in their bids an added 10.85% to cover overhead, cannot be construed as a finding that such amount was reasonable. And their findings in answer to-issues 42 and 43, in effect, that no part of Brown & Root’s overhead expenses for the years 1930 and 1931 should be charged to any of the jobs in which Neyland was interested, obviously, under our conclusion that a reasonable overhead should be included in construction costs, was not a fact finding but involved a construction of the contract. The province of the jury in such case was not to determine whether overhead should be deducted as costs of construction; but to determine, if the amount be disputed, what would be a reasonable amount of such overhead to be allocated to the jobs involved.
Under the conclusions reached in our original opinion as to the topping work done on Job No. 5, the first road construction contract, the trial court should, upon the findings of the jury, have rendered judg*849ment that as to this item, appellee take nothing.
We do not deem it necessary to further discuss the Saxet stock transaction, involving the $37,500 item, fully considered in the original opinion.
Appellee also calls our attention to an item of $3,077.19 consisting of gasoline tax refunds, one-half of which was due Neyland and awarded him in the judgment, concerning which there was no controversy, and the only question raised with reference to it was waived by appellants. This portion of the judgment should not therefore be disturbed.
In accordance with the foregoing conclusions, taken in connection with the original opinion herein, and in accord with the contentions of both appellants and appellee in their motions for rehearing that the various items above considered constitute severable causes of action, our order reversing and remanding the cause generally is set aside, and the following disposition made of this appeal:
The following portions of the judgment in favor of appellee against the appellants are affirmed, viz:
1. Judgment for $9,981.05, being one-half of the amount deducted by the State Highway Department from the contract price for construction of what was designated as Job No. 5, together with interest accrued thereon to the date of the judgment.
2. That O. L. Neyland is entitled to credit for $2,814, consisting of one-half of the gasoline tax refunds, $300 advanced by him in connection with the LaSalle County gravel pit, and $50 advanced by him for pay rolls.
3. That portion of the trial court’s judgment decreeing that plaintiff, O. L. Ney-land, take nothing against the defendants on his claim to an interest in the profits from the Edwards County road construction contract, designated as Edwards County Job No. 3.
The following portions of said judgment are reversed and judgment here rendered in favor of appellants against appellee:
1.That portion of the trial court’s judgment aggregating $34,175.37, wherein the trial court found and decreed that no items of cost should be charged against the jobs in which plaintiff was interested unless such items of cost were represented by invoices bearing the OK of plaintiff.
2.That portion of the trial court’s judgment which awarded plaintiff a one-half interest in the profits derived from topping the road on what was designated as Job No. 5 in Kerr County.
In all other respects the judgment of the trial court is reversed and the cause, except as above indicated, is remanded for another trial.
The motions of both appellants and ap-pellee, to the extent above indicated, are granted; in all other respects they are overruled.
Motions granted in part and in part overruled.