On Motion for Rehearing. In view of the dissent and of plaintiff in error's vigorous motion, which severally in different respects call in question findings of fact originally made, we have, in reconsideration, again carefully examined the record and statement of facts, with the result that no finding formerly stated can now be held to be unsupported, except the recitation that the land sold by Mr. Will Tyrrell was in Iowa — a wholly immaterial detail, which the reminder of the trust's counsel enables us to here correct, it being in Texas, and Mr. Tyrrell himself being in Iowa when making the sale. In this connection, however, there is no evidence, as the dissenting opinion asserts, that "he made these negotiations as the representative and for the benefit of his son," the record merely showing that he first sold the land for the trust, not being at the time either its agent for the purpose or the representative of any one, and then reported the sale to its Elena office with the request that the commission be credited to his Beaumont son, which was done and appellee and his associates given their regular 3 per cent. allowance on it; in other words, it was simply treated as being in line with what we so found was the habitual practice. Our former findings must therefore be reiterated.
Equally untenable is the present insistence that the land sold to Johnson was shown to have been withdrawn from within the purview of Lovell's contract two months before any agreement for such sale had been made. This rests alone upon Manager Martin's testimony to this effect: "I don't think the agents of the Trust were selling the land which Johnson bought up to the date the contract was signed, June 6, 1925. I think I had practically withdrawn that property from the market when we began negotiating with Johnson. It was probably in February or March, 1925, that I told our agents not to sell any more of that land. Mr. Lovell was in the employ of the Tyrrell Trust at that time."
The argument is that this expression undisputedly evidences a compliance with the concluding provision of the letter that "this agreement is subject to termination at any time on 30 days notice," hence abrogated the contract entirely as affected that portion of the trust estate. Obviously, we think, no such meaning can properly be read into the statement, as the general manager plainly was only referring to his preventing small-parcel sales out of that 5,000 acres by others of their sales agents to third persons while he himself, as their ex officio chief, with their co-operation, was endeavoring to sell the whole of it to Johnson — not to any attempt to withdraw it from the operation of the contract sued on. It could not be given that effect anyway, because, by its express terms, the 30-day notice provision was alone operative toward termination of the agreement as an entirety, not toward a piecemeal disintegration of it. Consequently no termination of any sort took place until December 31, 1925.
And, as formerly stated, Manager Martin was himself admittedly a sales agent, his own testimony on the point being: "I did have authority to sell land for the Tyrrell Trust. If you had come to me and said you wanted to buy some property from the Tyrrell Trust, I had authority to make the contract with you, but I didn't have any authority to make you a deed."
Then why, under all the other circumstances so tending, is it an unthinkable thing that he meant to include himself with all the other agents from whose sales the three *Page 886 resident ones on the property at Elena should receive this very small overriding commission?
It indisputably appears that the contract with the latter was a special arrangement, partly at least in consideration of the many other duties than selling land they were to perform, not comparable to an agency for the single purpose of selling land exclusively for a fixed commission; as Lovell put it, "in other words, I looked after the welfare of the property as a whole."
Our original finding that Lovell was paid the claimed commission on all sales made by the trust is vindicated by the fact that this entire record fails to disclose a single sale the concern made — by whomsoever negotiated — from the date his service began under the contract on December 6, 1924, until his retirement on December 31, 1925, pursuant to the stipulated 30 days' prior notice then given him, on which it was not paid him, except this 5,000-acre Johnson transaction. He so testified on this trial, and no witness disputed, saying further that he was then still receiving monthly some of those commissions on sales that had been completed after he left.
So that, upon the whole case, notwithstanding the recognized force of a contrary opinion, entertained alike by the Chief Justice and plaintiff in error's able counsel, we are constrained to adhere to the judgment before rendered.
The motion for rehearing will be overruled.
Overruled.