On Motion for Rehearing.
In their motion for rehearing, appellees present the same questions considered on original submission, but, as we discover no reason to change our decision, these will be given no further consideration.
However, appellees have so positively and *813categorically challenged the correctness of several of our findings of fact that we deem it necessary to notice briefly these criticisms:
1. In assignment No. 23 appellees say, "The Honorable Court of Civil Appeals erred in holding that Culbertson, the agent for Mrs. Brinkman, issued instructions to issue such stock certificate in her name, for the reason, that same is wholly unsupported by any evidence in the record.”
This criticism is leveled at the following statement in the opinion; we said that: "After purchasing the stock, Mrs. Brinkman delivered the certificates to Mr. Townley Culbertson, vice president of Commerce Trust Company of Kansas City, Mo., where these parties resided, with instructions to send them to Dallas and have the stock reissued in her name. Culbertson immediately mailed the certificates to a Mr. Peterson, manager of the Commerce Farm Credit Company, of Dallas, a subsidiary and correspondent of the Commerce Trust Company, with instructions to present the certificates to Howell Company and have one certificate issued for all the stock in the name of Pauline W. Brinkman.”
The criticism of appellees is that this finding is “wholly unsupported by any evidence in the record.” The record will disclose' which is correct; that is, the finding of the court or the criticism of counsel.
Mrs. Brinkman, a witness in her own behalf, testified: “I have already stated that I directed Mr. Culbertson to have these certificates of stock transferred in my name, and that Mr. Culbertson was my agent and representative in representing my interest in this matter, and that anything he did was satisfactory to me.”
On this point, Mr. Culbertson testified: "When I received the 125 shares of stock from her and gave her my receipt therefor, I was given instructions about what to do with this stock; I was instructed by Mrs. Brink-man to send the five certificates for 25 shares each to our Dallas office with instructions to present the stock to 1401-1403 Elm street, the Howell Company, and have one certificate for the full 125-shares issued in her name, and upon receipt of the new certificate to instruct them to deliver the five old certificates, and I gave those instructions to our agent at Dallas. Mrs. Brinkman never did give me any other instructions to the contrary, and she never did authorize me to have these certificates transferred to Mr. J. George Brinkman. The Commerce Farm Credit Company, of Dallas, was acting in the capacity of representatives of the Commerce Trust Company.”
C. G. Peterson, an officer of the Commerce Farm Credit Company, of Dallas, correspondent or subsidiary of the Commerce Trust Company of Kansas City, with which Culbertson was connected, testified as follows: "I received those certificates of stock from Mr. Townley Culbertson, of the Commerce Trust Company of Kansas City, Missouri. At the time I received those certificates of stock from Mr. Culbertson, I received a letter of instructions with them. This letter that you hand me is the letter that I received from Mr. Culbertson with the stock certificates in question.”
The letter in question is as follows: “March 30, 1021. Mr. Peterson: Enclosed please find five certificates for 25 shares each in the Toole-I-Iowell Furniture Company. Please present at 1401-3 Elm Street to the Howell Company, which is the present corporation, and have one certificate issued for the full amount of 125 shares issued in the name of Pauline W. Brinkman. I would appreciate your sending somebody over to have this done tomorrow and get it back to me as soon as you can.”
The evidence just quoted is uncontradicted, and overwhelmingly supports the finding.
2. It is claimed by appellees in their twenty-fourth assignment that the court erred in holding that the instruction, later given, by Culbertson, to have the stock issued in the name of J. George Brinkman was the result of a mistake on the part of Culbertson; the contention of appellees being that this finding is not supported by any evidence in the record, but finds support alone in the allegations of pleadings.
The record discloses, and our findings show, that, when Peterson, as directed by Culbertson, requested Howell Company to issue one certificate in the name of Mrs. Brinkman, in lieu of the 5 certificates for 25 shares each originally issued to Toole and pledged hy him to secure his.note to J. George Brinkman, the' Howell Company declined to make the exchange and transfer, because Toole had (prior to that time) filed with the company a written notice warning them not to make any transfer of the stock, and that, after Toole and Mr. Brinkman settled their differences, Toole released the Howell Company from the operation of said notice. This brings us to the finding under criticism, as follows: We said: “After this settlement, Peterson, acting for Culbertson, again presented the stock certificates to the Howell Company for transfer. It seems that in a letter dated May 7, 1921, Culbertson requested Peterson to have the company reissue the stock in one certificate in the name of J. George Brinkman, and, as requested, Howell Company, on May 11, 1921, issued the certificate in suit, being No. 29, for 125 shares. The instruction to Peterson to have the stock reissued in the name of Brink-man was a mistake on the part of Culbertson. Mrs. Brinkman had made no such request; ■ in fact, Culbertson did not intend to have the stock thus reissued, as it was in violation of Mrs. Brinkman’s instructions.”
The record abundantly shows, without contradiction, that neither Mr. .Brinkman nor Mrs. Brinkman made or authorized any request to have the stock reissued in the name of J. George Brinkman. Culbertson alone *814knew of this matter, and explained the circumstances under which he made the request as follows: Referring to his letter to Mr. Peterson, dated May 7, 1921, in which the request was made to have the stock issued in the name Of J. George Brinkman, the witness said: “I wrote that letter; I consciously wrote such a letter, but the stenographer either made an error or I made it in dictating it, because I know that the stock was to be transferred to Mrs. Brinkman. I know that I had never had any instructions to change that manner of handling the transaction. I know that there had never been the slightest discussion about handling it in any other way, and I can only explain the letter reading J. George Brinkman instead of Pauline W. Brinkman, by saying that I have been very, very busy, the volume of our correspondence with the Dallas office was very heavy, and often, in going over this mail in the evening before it went out, I would not read it before signing it, else I would surely have caught the misstatement, for such it certainly was. I did not discover the error for some time, when the contents of the letter was shown to me or told me I immediately realized that it was wrong, without any suggestion or remarks from anyone else on the subject, and so advised them at the time, and have so advised everyone else since that time who has asked me about it. For that reason it is very strongly impressed upon my mind that I did not make the error in the letter you refer to. I hqve just stated to you that after receiving this stock from Mrs. Brinkman, that I had not received any instructions from her contrary to that, asking me to have the stock transferred to her and in her name. My letter to Mr. Peterson asking that the stock be transferred to J. George Brinkman was- a mistake.”
This uncontradicted testimony fully vindicates the correctness of our finding.
3. In their thirty-fifth assignment appellees say that we erred in holding that the finding of the jury, to the effect that Stewart had no notice of the claim of Mrs. Brinkman prior to the levy of the attachments, was contrary to the undisputed evidence; their contention being that the evidence on this point was in fact disputed.
We do not regard it a fact of any materiality whatever whether Stewart did or did not have notice of the claim of Mrs. Brinkman prior to the levy of the attachment, but, in view of the criticism, we deem it necessary to show that our holding is in harmony with undisputed evidence.
J. George Brinkman testified: “I have already testified that I had a conversation with Mr. Stewart, and in that conversation I advised him that this stock belonged to Mrs.. Brinkman. That was prior to March 30th, 1921. I advised Mr. Stewart more than two years before — in 1919 — that I owed Mrs. Brinkman this money.”
On April 14, 1921, about one month before the attachments were levied, Brinkman wrote Stewart, among other things, that “Toole having failed to pay interest on his note, there was nothing else to do but to foreclose (on the stock), and that the owner of the stock will hold the Howell Company for any loss sustained by its refusal to transfer the stock and pay the dividends to the present owner.” In this letter the name of the then owner of the stock was not given, but it does appear from the letter that the stock had been sold and passed from the hands of Mr. Brinkman and was owned by another. Again Brinkman testified that, prior to the levy of the attachments, Stewart was advised by him that he (Brinkman) did not own the stock, that he had informed him of this fact a number of times.
Stewart did not testify. The above is substantially all the evidence on this point, is uncontradicted, and supports our holding.
Appellees’ criticisms of our findings were not justified by anything in the record; their motion for rehearing is overruled.
Overruled.