(dissenting).
I respectfully dissent. The question of whether the term “necessary services” as used in the contract imposed a duty upon Maxwell to produce new business would be highly relevant if the rights of the parties turned upon the existence vel non of good cause for the discharge. That is not, however, the problem in this case. As pointed out by the majority opinion, the Court of Civil Appeals has held that the agreement was a “satisfactory performance” contract. Maxwell does not question that holding here and it has been accepted by the Court, as it must be. The crucial inquiry then is whether there is any evidence that Cardinal’s discharge of Maxwell was not based upon good faith dissatisfaction.
This is not a summary judgment case. Cardinal moved for an instructed verdict when plaintiff rested, and the motion was granted. All the testimony comes from Maxwell, and there is no problem of credibility or conflict except in Maxwell’s own testimony. His conversations leading up to the letter agreement of November 16, 1967, were with three representatives of Cardi*788nal: Broach, Bickers and Hafernick. The agreement was signed in San Antonio after Maxwell had driven there from Austin with Broach and Bickers.
At one point Maxwell testified that “there wasn’t nothing said about new business I was going to get before we signed that thing.” Apparently this is the statement regarded by the majority as a stout denial that the subject was even discussed until some time after the sale of the business. The stoutness of the denial is weakened somewhat by Maxwell’s other testimony :
Q. Mr. Maxwell, what is your present recollection of the discussion you had with Mr. Bickers and Mr. Hafernick on or about November 14th and 15th of 1967 with respect to the possibility of your getting new business in the Beaumont-Houston area and the Louisiana area after you became associated with Cardinal ?
A. I told them I would try.
Q. Is that all you told them ?
A. I told them I would try; I believe I could increase it, but I would be out there trying.
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A. I talked with Mr. Broach before I signed it.
Q. First you talked to Mr. Broach by telephone about new business?
A. Yes, sir.
⅜ ⅜ i}i ⅝ ⅝ ⅜
Q. * * * and you and Mr. Broach and Mr. Bickers, between Austin and San Antonio, you talked about new business in this area?
A. We talked about getting new business.
Maxwell’s testimony concerning a number of other matters is quite clear. The business in which he was engaged consisted primarily in buying crude oil at wells not on a pipeline and transporting the oil by truck from the leases to the pipeline, where it was sold. It was necessary at all times to obtain new business to replace that which was lost as a result of wells going out of production or being connected to a pipeline.
Cardinal “took over” on December 1, 1967. The duties assigned to Maxwell were “looking after trucks; just buying crude oil; anything that pertained to Cardinal Petroleum.” He made contacts to try to obtain new business. Cardinal gave him the “tools” he needed to solicit new business. He was furnished an automobile, a credit card, an expense account, and reports showing new wells that were being drilled.
According to Maxwell’s testimony, he thought he was going to increase the business. Broach called him the second month “wanting more business.” Maxwell expected this, “but not that quick.” Beginning with that conversation Cardinal talked with Maxwell a number of times about his failure to produce new business. Finally in September, 1968, he had a conference with King, who is President of Cardinal, and Broach. “I believe Mr. Broach wanted to let me go then and Mr. King wanted to hold me a little longer. He told me to go back to Beaumont and try to build it up.” Maxwell did return to Beaumont, but the situation did not improve. “It got worse.”
It is clear from Maxwell’s testimony that he knew from the beginning that one of the “necessary services” expected of him was the solicitation of new business. He also knew after the second month that his services in that respect were not satisfactory to Cardinal. Although this was brought to his attention repeatedly, there is no suggestion that he ever claimed, to Cardinal or anyone else, that soliciting new business was not one of his responsibilities under the contract. He does not take that position here.
In my opinion the evidence, and particularly the practical construction of the *789agreement by the parties, shows as a matter of law that attempting to obtain new business was one of the “necessary services” contemplated by the contract. There is no evidence that Cardinal’s dissatisfaction with Maxwell’s efforts in that respect was not in good faith. It is also my opinion that evidence of bad faith will not be supplied by a factual determination, in retrospect, that the contract did not impose upon Maxwell a duty to produce new business. I would affirm the judgment of the Court of Civil Appeals.
CALVERT, C. J., and GREENHILL and STEAKLEY, JJ., join in this dissent.