On Motion for Rehearing
Appellee contends that we erred in our original opinion, as she states, by allowing the appellant to prevail on grounds which were not assigned as error, were not made the basis of his appeal, and which were not raised as points of error in his brief or in oral argument.
Appellant brought forward several points of error in this non-jury case. Among them were points of insufficient evidence and of overwhelming weight contending that Mrs. Campbell, appellee, knew and consented to appellant’s acting both as a real estate broker and as a trustee for undisclosed purchasers. The rule is that a broker may act for the buyer and the seller only with full knowledge and consent of his principals, as discussed in our opinion. The trial court’s judgment was in favor of appellee, and no findings of fact and conclusions of law were filed. Thus, we had no way of knowing the entire ground or grounds upon which the trial court relied as a basis for its judgment except by ap-pellee’s pleadings, by appellant’s points of error, and by the statement of appellee in her brief, the latter of which has little or no effect or value in this type of situation. The trial court, impliedly at least, in support of its judgment found as controlling a lack of knowledge and a lack of consent by appellee to the above actions of the broker-appellant. If the trial court did find such issues against appellant, they were of controlling importance. But on appellant’s points of error we held that such implied findings against appellant were not supported by factually sufficient evidence, and we reversed and remanded. This was proper in the absence of independent grounds calling for an affirmance in spite of implied findings on the above points.
In attempting to show independent grounds to support the judgment, the ap-pellee was not successful. See Botello v. Misener-Collins Company, 469 S.W.2d 793 (Tex.Sup.1971). Thus, we reversed and remanded the case for another trial. The record also is incomplete. The unusual procedure involved causes us to make these added observations.
Appellee’s motion for rehearing is overruled.