On Motion for Rehearing.
It is asserted that the court misunderstood the facts in the record, and that Jones was not in the employment of the appellants, as shown by the facts in the record. Jones swears he was in the employment of appellants until August 1, 1910, and that during the months of June and July the appellee Brazer reported sales by wire to the St. Louis office, of which he was then in charge, and during those months Jones sent out confirmations of the sales to the purchasers and mailed a copy to the appellee, and one copy to appellants’ office in Oklahoma City, and one to their office in Ft. Worth. E. R. Kolp swore the contract expired with Jones June 15, 1910, and there is a written contract between Jones and appellants which shows it was to continue until June 15, 1910. Kolp admits by his testimony that Jones remained in the St. Louis office for a month and 15 days after that date in charge of the office, but says he had no authority to do any business. On the 3d day of August following, appellants wrote from their Ft. Worth office to the appellee Brazer that they had closed their St. Louis office, and that the business theretofore transacted from that office would be divided between the Oklahoma City and Wichita offices, and the affairs of the St. Louis office would be wound up from Ft. Worth, and “if there are any communications regarding which you desire to make would be glad to hear from you.” They further say they will quote for shipment from Wichita and hope a nice business may result. The testimony of Brazer and Sullivan show that on June 30, 1910, appellee rendered appellants a statement of the sale of 152 cars of bran, giving the names of the parties to whom sold, date sold, and price, and on July 30, 1910, a like report of the sale of' 50 cars. Appellants were notified to produce the originals. From the record it appears they were not so produced, and carbon copies, which appellee produced, were introduced in evidence. After these reports, appellant notified appellee on August 3, 1910, that they had closed their office at St. Louis and would quote shipments thereafter from Wichita and solicited further business. We think this testimony shows, not only that Jones was the agent of appellant when he entered into the contract with Brazer, but also when Brazer made and reported the sales. If the testimony of Brazer, Jones, and Sullivan is true, these sales were made and reported to appellants. In their letters they recognize the fact that Brazer had been making sales, for them from their St. Louis office. These acts of Jones and Brazer they do not disaffirm, but instead notified Brazer *902they expected to continue business with him from their Wichita office and expressed the hope for a nice business. At any rate, the jury believed Brazer, Jones, and Sullivan and accepted their testimony and disregarded that of E. R. Kolp.
Counsel contends that the original letters and telegrams were attached to the depositions of Brazer as Exhibit 5. This is a statement by attorneys, but the record in this case does hot disclose that fact. The record shows in this case that copies of confirmations of the sales are set out in Exhibit 3 to the deposition, and Exhibit 3 covers 16 pages of the statement of facts and the confirmation of the sales purport to be addressed to the respective purchasers to whom Brazer says he sold, confirming the sale. If Jones is to be believed, he sent these confirmations to the purchasers — a copy to Brazer and a copy to appellants at Oklahoma City, and a copy to them at Et. Worth. Brazer testified these are the copies he received. Kolp says he never got any such reports of confirmations. The jury accepted the testimony of Jones, Brazer, and Sullivan. 'We think therefore the evidence sufficient to show Jones was the agent of appellants, and that he, in acting for appellants, confirmed the sales; also, notifying appellee that the sale was confirmed. This was the act of appellants, and as such was admissible as the acts and declarations made by them and substantially admitting the sale.
We have been severely taken to task for stating that E. R. Kolp excused himself from searching through his letters and correspondence in question on the ground that the mass and bulk was so great that it would take considerable time to find them. In speaking of the correspondence between the appellants and Jones, E. R. Kolp says: “I do not know where some of that correspondence is. I did not have any occasion to look for it. * * * I read the depositions in which he said he sent us copies of the correspondence. I have not looked for copies of that correspondence. The reason I did not was that it was not necessary. I did not think it was needed. There is a mass of stuff that comes there. * * * You could not have a building large enough to keep all these copies from four or five offices. Whenever he made a sale of bran, he was supposed to send us an account of it.” The trial court qualified the bill of exceptions taken to the admission of this evidence, that appellants were given notice to produce all letters, papers, and correspondence in relation to the transaction. Jones testifies the notices of sales were sent appellants and were sent through June and July. Brazer testifies that these were notices of confirmation of the sales received by him from appellants., The record does not show any other sales made by Brazer. The correspondence, as well as Kolp’s testimony, in several places, shows that he knew Brazer was making the sales. The jury accepted the testimony offered by appellee and rejected Kolp’s testimony. We do not think we have treated appellants unfairly in the record, but have gone over it carefully several times. We think we have correctly quoted the record or its effect and those facts which support the findings of the jury, and, but for the seeming disposition on the part of counsel to attribute to us oversight in examining the record, we would not have filed this additional finding.
The motion of the appellants is overruled.