On Second Motion for Rehearing. A motion for rehearing has heretofore been overruled, but appellant has asked and been granted permission to file a second motion. One motion for rehearing is all he is entitled to have filed, but on account of the failure of the court to write any opinion in overruling the first motion, and in deference to the earnest and importunate manner in which appellant urges his contention, we have reviewed the entire case again. This, however, is not to be taken as a precedent, and will not be followed in other cases.
Unquestionably the authorities all sustain appellant's propositions of law that a principal cannot divide a trade made in his behalf by an agent, taking to himself its benefits and repudiating its burdens as unauthorized. Neither can a principal plead ignorance of the unauthorized acts of his agent, but is bound at his peril to inform himself, not only of the obligation, but of the rights, of the other party as stipulated between the latter and him who acted as agent. As general rules of law these are correct, but they do not apply to this case. This is a written subscription to the stock of a corporation to be thereafter organized, upon which the subscriber sought to engraft and impose oral conditions. The court below found that Isaacs was not the agent of the appellee, and we think his finding was correct. The record shows that Isaacs was appointed by and was the agent of the soliciting committee, that the soliciting committee was appointed by and was the agent of the Chamber of Commerce, and that the Chamber of Commerce was representing the citizens of Amarillo in their effort to secure the packing house. Appellee corporation had no existence at the time the subscription was made, and therefore could have no agent. Weatherford, etc., Railway v. Granger,86 Tex. 350, 24 S.W. 795, 40 Am. St. Rep 837.
Notwithstanding the fact that appellant had been called upon several times to pay his subscription, he waited 18 months, until after the organization of the corporation, the expenditure of money, and the incurring of liabilities by the corporation, before ever setting up his parol conditions to the subscription as a defense. Appellant insists that the soliciting committee were the promoters of the corporation. The record does not bear this statement out, but, on the other hand, shows that O. W. Butt was the sole promoter, as that term is commonly used and understood. As such promoter he made the proposition to the people of Amarillo, through the Chamber of Commerce, and until the stock, which the citizens of Amarillo were to take, had been fully subscribed, his interest was adverse to that of the other subscribers. His proposition could not be accepted until the full amount had been subscribed. Butt testified that he knew nothing of Isaacs being connected with the committee, and no one contradicted that statement. Isaacs was working for those interested upon the other side of the proposition, and could in no sense be considered as the agent of Butt, the promoter, and certainly not of a corporation which had never come into existence. There is nothing clearer in this record than that the relation of principal and agent never existed between the company and Isaacs. At most, Isaacs was the subagent of the citizens of Amarillo, and that in the third degree.
An agent is a person appointed to act for another in the transaction of some lawful business. Williams v. Moore, 24 Tex. Civ. App. 402,58 S.W. 953. And we think that when appellant signed his name to the subscription *Page 527 list, along with other subscribers and delivered the list to Isaacs, and instructed Isaacs not to deliver it to the subscription committee until he had a written contract from the committee, setting forth all the conditions upon which appellant had subscribed, that he constituted Isaacs his agent to make the deal accordingly, and to protect him in doing so. If the agent of the soliciting committee, whom he had adopted and made his own agent, violated his instructions, we think it would be inequitable to charge appellee with the wrong. Trammell V. Turner,82 S.W. 825; Western Union Telegraph Company v. Edsall, 63 Tex. 669.
We see no reason for changing our former opinion in any particular, and the motions for rehearing are overruled. *Page 798