The appellee Jones sued J. S. Johnson and appellant, Mann, for the recovery of 25 cents per acre commissions on the sale of four leagues of land in Hockley county. It is alleged that the property belonged to Johnson, who agreed with appellee Jones that the latter should sell said land; that no definite amount of commissions was agreed upon but that the usual and customary commission was 50 cents per acre, and that he was entitled to one-half thereof; that he agreed with Mann to allow him one-half of the commissions earned; that Johnson listed the lands with him at $16 per acre, and that soon thereafter he employed Mann to procure purchasers therefor, with the understanding that they would divide the commissions to be paid by Johnson; that Mann accepted said employment, took a list of the lands, and in December or January of the following year consummated a deal with J. C. Whaley and A. F. Jones; that said deal had been in all things closed, and that the commission was then due. He further alleged that Mann and Johnson had made some sort of an agreement, contrary to the original agreement, which was not binding on him.
Appellee Johnson answered by demurrer and general denial, and pleaded specially that he listed the lands for sale with Mann individually, who sold the same to Whaley & Jones, and that there was due him as commissions the sum of $3,480, of which amount he had paid the sum of $1,255.25, and that he held the balance subject to the orders of the court, offering and tendering the same to the party entitled to receive it. Mann answered by general demurrer, general denial of the allegations in appellee’s pleadings, and, by cross-action against Johnson, his codefendant, alleged that the lands had been listed with him; that he had sold them to Whaley & Jones and was entitled to the balance of the commissions then due. A trial before a jury resulted in a judgment in favor of appel-lee Jones for one-half of the commissions and in favor of Mann for the remainder. The case was submitted upon special issue, in reply to which the jury found: That Jones furnished Mann a list of the lands and requested him to offer the same to Whaley & Jones’ under an agreement between Mann and appel-lee Jones that they should divide the commissions if a sale was effected; that Mann accepted appellee’s proposition, and that at the time of the sale C. W. Jones had the lands listed with him for sale.
[1] There are five assignments of error presented in appellant’s brief, which, under the view we take of the case, it will not be necessary for us to consider in detail. The' evidence is conflicting upon the issues submitted to the jury, but is amply sufficient to support the findings. Johnson had listed the land with appellee Jones, and according to the evidence and the findings had not canceled the listing contract, and Jones was still his agent at thevtime of the sale. As to Johnson, Mann occupied the position of a subagent, but under the contract between O. W. Jones aind Mann the former was the principal, and this relation, according to the record, existed up to the time of the sale. Having agreed to represent .Jones as his agent, Mann could not, without reasonable notice to Jones, secure an agency from Johnson direct for .the sale of the property. His position is analogous to that of a tenant, who attempts to deny the title of a landlord. He must first notify his principal of his purpose to terminate the agency before he can acquire rights adverse to his principal in the prosecution of the work for which the agency was created. If he had notified Jones, the latter could, and doubtless would, have made an effort to-procure another purchaser. Securing the right from Johnson direct to sell the land was an attempt to violate ¡his contract with Jones, and was *990such a breach of good faith as the law does not tolerate.
[2] It is contended that Jones did nothing toward procuring a purchaser, and that it wa& through Mann’s efforts alone that Whaley & Jones were induced to buy it. A sufficient answer to this contention is that, under the contract between appellee Jones and Mann, it was not contemplated that the former should actively interest himself in the negotiations. He had the land listed with him, and, while it is not shown to be an exclusive agency, when Mann accepted the position of subagent under an agreement to procure the purchaser and divide the commissions, appellee was entitled to his share thereof, by virtue of the contract between them. Bauer et al. v. Crow, 110 Tex. 538, 221 S. W. 936; Id., 171 S. W. 296.
The judgment is affirmed.
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