On Motion for Rehearing.
The appellee in this cause, in the motion for rehearing, insists that we misunderstood the statement of facts in concluding that the deal between Scoggins and Wellborn, for the property sold by Moore to Wellborn, was a cash transaction, and appends to the motion aliunde evidence and an affidavit as a presentation of the transaction. Wellborn, who had the oral option with Moore, testifies that it “was for the purpose of raising money, and if I could raise it I would trade with him,” meaning Moore. Kelley, the appellee, in referring to the Wellborn-Scoggins deal, whereby Wellborn sold the Moore land to Scoggins, testified that Wellborn “realized something near $13,000 for the ranch property in Garza county that he got from Mr. Moore.” Wellborn further said: “In letting the Moore land go at $2,000 less than he paid for it, he figured he could buy another piece of property that would suit him better.” The serious and important issue in this cause was a complaint of the violation of instructions by Moore to Kelley to report offers of a cash transaction and was specifically raised by the appellant, and the argument in his brief was based upon the theory, as we construe it, that Scoggins’ offer and trade with Weliborn constituted a cash transac*1038tion. We construed the record conclusively, and think it a fair and reasonable construction from the testimony that the same was a cash transaction, and we are compelled to act upon the record as we find it.
As stated by us, in the ease of Kell Milling Co. v. Bank of Miami, 155 S. W. 328, where stenographer’s notes, upon motion for rehearing, were attempted to be adduced as evidence of the real transaction: “The consideration of an ex parte document to the extent of basing a review upon same would of course be highly improper.” If we considered such matters we would be constantly reviewing cases upon appeal, not upon the record, but upon ex parte statements of fact, which, as a matter of policy, would lead to inextricable confusion and destroy the purpose and province for which this court was created. Though we find that the record is compatible clearly with that conclusion of fact and excludes any other (and upon reconsideration of the statement of facts our view is strengthened in this respect), however, if we did conclude something that the record does not show, that is, that Scoggins’ deal was part cash and part something else, we are not sure as a result of the principle, based upon the duty of agent to principal in protecting the latter’s interest, that the result of this appeal would have been different, which, however, we do not decide. We think the legal merits of this case have been solved, and the motion for rehearing is in all things overruled.