On Motion for Rehearing.
Appellee has filed a motion for rehearing, in which he offers to remit $106.64 of the judgment obtained in the trial court. In view of this we have carefully reread the evidence.
In his pleadings the appellee, plaintiff below, set out numerous lists of notes taken as premiums on insurance policies which he alleged were sold to, or collected by, some seven different banks, or were collected by the company directly from the makers. It appears from the undisputed evidence that notes in the aggregate amount of $533.20 *1030were at tlie time of tlie trial still in possession of tlie insurance company, and liad not been collected. It is tlie 20 per cent, commission on tliese notes that appellee offers to remit.
However, the notes alleged to have been cashed by the insurance company at the Gustine bank aggregate in amount the sum of $1,468.S8. We do not deem it necessary to set out the evidence, but suffice it to say that the evidence is conflicting as to whether these notes had- been sold to the Gustine bank, or -were merely sent there for collection. Only two of said notes, aggregating in amount approximately $349, were shown to have been paid. The remaining notes appear to have been renewed in whole or in part, and the evidence does, not show how much had been paid on said renewals. At any rate, the evidence is conflicting, and the question of whether or not this list of notes had been sold to the Gustine bank, or merely sent there for collection, should have been submitted to the jury. Appellee’s motion is therefore overruled.
Overruled.