Opinion
No. 65961.
June 11, 1919.
On motion for rehearing. Denied.
For former opinion, see 209 S.W. 247.
Appellees have been permitted to file a second motion for rehearing, but, after due consideration of the same, we have reached the conclusion that the case has been properly disposed of by this court.
However, the statement in our former opinion that the undisputed proof shows that under the contract of August 5, 1909, Edwards took possession of the land in controversy, and made several test holes at his own expense, and that under the contract of August 16, 1909, he and his associates took possession, bought rights of way, and built spur tracks to the property at considerable expense, and had excavated some gravel from the land, is not accurate, and may be misleading.
The contract of August 5, 1909, related to a 35-acre tract of land, of which the 8 1/2-acre tract in controversy was no part. The latter was covered by the contract of August 16, 1909, and the most, though not all, of the expenditures referred to were made in developing the 35-acre tract. However, that fact does not Justify an affirmance of the judgment. On the contrary, the Shicks, under whom appellees claim, having accepted from appellants numerous payments of money under the contract of October 16, 1909, and appellees having incurred at least some expense in pursuance of that contract, we hold that it was not, at the time appellees sought to cancel it, a unilateral contract in the sense that it was not binding upon appellees.
Motion overruled.