On Motion for Rehearing.
The statement in our opinion that “it appears that when Holbert came to San Antonio with Melick he wanted to remain in San Antonio and intrust the further work in Arizona to subagents, and especially to Hudson & Melick,” is vigorously attacked as unsupported by the evidence. We will briefly state some of the evidence on which we based our statement. Denton testified:
“It is a fact that, just as soon as Mr. Holbert told me he wanted to stay here and he could handle Ms business as well by subagents, I told him that if he did not go hack we were going to discharge him.”
Holbert testified to discussing the matter with Denton, and admitted that Denton thought he could do better by going back, but testified positively that Denton did not discharge him verbally or by letter then or later; that he never heard of being discharged until the trial of the case. Holbert testified his health was bad, and that he told Denton he “could manage Arizona here in San Antonio.” He testified further:
“He thought I could do better going back, but, after finding Mr. Melick as agent, it proved I was doing better or as good as if I had went back myself, from Mr. Meliek’s number of contracts he sent down here.”
He also testified that he stayed in San Antonio where Denton put him to work and sold shares “after Melick went back and took charge at Williams, Ariz.” While it appears that he had other subagents in Arizona, it seems, from the letters he wrote Den-ton before going to San Antonio with Melick, that most of his hopes were centered in the prospect of selling shares in the vicinity of Williams, and that having formed a club there, if Meliek’s report on the land proved favorable, he expected sales could be made of from 100 to 200 shares. We think the testimony fully sustains the statement made by us. The evidence supports a finding that while Denton was of the opinion, especially at first, that Holbert should return to Arizona, he did not insist upon it or discharge him, but was satisfied with the way in which sales were being made by Holbert’s sub-agents.
Appellant also attacks the statement that Denton recognized that Holbert was performing his contract and availed himself of the fruits of the labors of the subagents, treating them throughout as subagents. It is true that Denton’s books had two columns on each page, showing the name of the general agent and the name of the selling agent. Holbert’s name appeared under the heading “General Agent” “up to a short time before the 20th of November, 1909,” and thereafter did not appear, while the name Hudson & Melick appears throughout under the heading of “Selling Agent.” There was no explanation offered as to why the name of IIol-bert was left oif, and no explanation offered of the circumstance that this occurred a short time before November 20th, the date Denton claims to have discharged Holbert as agent for Arizona. Denton did not keep the books, and Sawyer, who did keep them, merely testified that Holbert’s name appeared first as selling agent and that he scratched it out and wrote in the name of Hudson & Melick, and then wrote Holbert’s name in the other column; that he did this when Holbert reported that he had certain people assisting him in Arizona who were entitled to commissions. Appellant attaches undue weight to the failure to keep on writing Holbert’s name under the heading of general agent. This was primarily Holbert’s account, and, while it was necessary to state the name of each selling agent who sold a share, they were all agents of Holbert, and it was unnecessary to keep on writing his name in the other column. It is not a conclusive circumstance showing that Hudson & Melick were no longer treated as subagents. The books, according to the statement of facts, show that on each of the sales mentioned therein made by Hudson & Melick they received $5, the amount they were to receive as subagents. There is no pretense that they were ever informed that the contract under which they were operating had been canceled. Denton testified: “I did not have a contract with them at any time, I wrote them.” In his motion for rehearing he argues we should infer from the statement that he wrote Hudson & Melick that he meant he had no formal written contract, and that, to show he did have some different arrangement with them upon some kind of a basis, he stated that for the last share they sold he paid them $25. Melick testified they received $5 for each sale made, but his attention was not directed to the.particular sale mentioned by Denton.
Appellant asks too much when he expects courts to infer from the fact that he wrote letters that such letters contained statements informing Hudson & Melick that the com tract under which they were operating was at an end, and also when he contends that a contract should be inferred from the fact that on the last sale made by them he paid them $25. This sale was made on December 26, 1911, to a person whose -name does not appear in the list of contracts for which plaintiff seeks to receive commission, and *256whose name we can reasonably find does not appear upon the books, for the statement of facts contains the statement that Hudson & Melick were paid $5 per share for each one appearing in the books. In addition, it may be said that appellant’s explanation concerning the payment of this $25 does not justify any inference of a different contract, for he testified he simply offered it and they “accepted it with no particular reason except to make the sale.” Surely, if appellant had informed Hudson & Melick that he had discharged Holbert, and had entered into a contract with them, he would have been only too glad to have so testified, and Melick would also have so stated, for his testimony does not evidence any disposition to assist Holbert. The fact that Denton, for some unexplained reason, considered $25 adequate compensation for making the last sale, tends to support the finding that he treated Hudson & Mlelick as subagents with regard to all sales for which he allowed them only $5 and for which Holbert sought to recover commissions. Appellant admits that up to November 20, 1909, he recognized Holbert’s agency, and 93 sales were made by Hudson & Melick upon which he admitted liability to Holbert. The other 68 were made in exactly the same way, through the same parties, without any notice to them that any change had taken place, and he paid only a sub-agent’s commission. We think evidence supports the statement made in our former opinion.
We find that we were in error in stating that Denton reported to Holbert many sales made after November 20, 1909, and paid his commissions therein. This statement was made by reason of the fact that so many names included in the reports to Holbert appear in the list of sales for which commission is sought to be recovered. We conclude that said parties must have purchased contracts before November 20, 1909, in addition to those for which commission is sought to be recovered. Still we do not feel authorized to hold that the evidence conclusively shows a new contract between Holbert and Denton on or about November 20, 1909, whereby Hol-bert was authorized to sell in Texas but discharged from Arizona. There is a direct conflict between the testimony of Holbert and Denton on this issue, and the court may well have concluded that it was highly improbable that Holbert would prefer to stay in San Antonio when required to go back to Arizona or lose the business which the evidence shows paid him for the preceding three weeks from $1,420 to $1,820. His testimony was that 93 contracts were made after October 25th, while Denton testified 22 thereof were made prior to October 25th. It appears from Sel-by’s testimony, introduced by defendant, that Selby, during the fall of 1909 and first part of 1910, talked to Holbert three or four times a week, a part of the time; that Hol-bert told him he was selling land for Simmons, and he understood from Holbert that he was the Arizona agent for Denton Colony. As Holbert’s contract with Simmons is dated January 31, 1910, the natural inference is that Holbert considered himself the Arizona agent for Denton Colony after January 31, 1910. Denton testified that when he closed his sales in the latter part of January, 1910, he discharged most of his agents, but kept a few. The evidence supports a finding that he failed to discharge Holbert, for Holbert testified positively that he was not discharged. It appears, however, that on January 31, 1910, Holbert signed a contract with Simmons to sell section 14 upon a plan very similar to that used by the Denton Colony Company, and we were mistaken in saying that he did not try to sell any Simmons contracts in Arizona, for he admitted that he did, but the evidence fails to show when he tried to do so. It does not appear that he succeeded, and he did not try to get Hudson & Melick to sell same, but suggested to Melick that after he got through with the Denton Colony there was another opening in the Simmons land. It appears from Denton’s testimony that, after the close of his sales in January, he forfeited several hundred purchases, and that many of those sold by Hudson & Melick were forfeited shares. Denton availed himself of Holbert’s subagents to continue selling forfeited shares, without discharging Holbert. The contract with Simmons is dated January 31, 1910. Holbert went to Asherton and opened an office. On February 10, 1910, he wrote Denton concerning the sale of other lands for Denton, but did not mention in said letter that he was trying to sell a certain section of land. On February 14, 1910, Denton Colony Company answered the letter, approving what Holbert had done in his efforts to sell the Denton lands, and approving his arrangement with one Gregory, who apparently represented Denton, for commissions; also, promising to send him a blueprint showing the Denton Colony Annex, and some printed matter in connection therewith. This letter contains the following significant statement:
“I hope you are getting along nicely and will soon close up that section of land you are handling. Mi\ Farrington sends his kind regards.”
No section of land had been mentioned in Holbert’s letter, introduced in evidence by defendant. Had he written other letters not produced by defendant, or had Farrington who was jointly interested with Holbert in the Simmons contract informed Denton that Holbert had undertaken to sell section 14 for Simmons? In the next letter by Holbert to Denton, introduced by defendant, which is dated March 1, 1910, he mentions section 14, and speaks of selling some of it, and says he cannot tell how long it will take for him to close out. On March 16th, he again wrote Denton mentioning section 14 and telling what he had been doing, and stating that he is glad Denton is making arrangements with *257his eight sections. The letter by Denton which called for the last statement was not introduced by Denton. On March 18th, Hol-bert again wrote Denton in reply to a letter not in evidence concerning sales by Holbert to certain San Antonio parties of Denton Colony shares concerning which there was a controversy as to commissions. On April 14, 1910, Holbert again mentions section 14. Denton testified he was familiar with the plan of sale used by Simmons; that, if Hol-bert was engaged in any other enterprise than his, he would not have permitted Hol-bert to work for him; that, while he was engaged in selling contracts in Bexar and Dimmit counties, he had no objections to his handling any other deal he wanted to. The evidence warrants a finding that Denton knew of and acquiesced in the employment of Holbert by Simmons and waived any right to claim a cancellation on the ground of antagonistic employment.
We therefore conclude that, even if the employment was shown to be inconsistent, Den-ton cannot evade liability on the theory of inconsistent employment, as is urged in the fourth assignment. Such employment, if not waived, could at the most be relied on only to deprive Holbert of compensation for sales made after January 31, 1910. Cotton v. Rand, 93 Tex. 23, 51 S. W. 838, 53 S. W. 343; Peacock v. Coltrane, 44 Tex. Civ. App. 533, 99 S. W. 107.
The motion for rehearing is overruled.