Pemberton, C. J.
The principal contention of counsel for appellant is that the evidence does not justify the findings and judgment of the court. The negotiations of the parties in reference to the alleged sale of cattle were conducted almost entirely by telegraph. The telegrams are all in the record. Without embodying them, we will quote so much of them as shall seem necessary, as we proceed in the discussion of the case. From an inspection of these telegrams, it clearly appears that the negotiations in reference to the sale of the cattle were opened and begun on the 26th day of May, 1890, by the plaintiff’s télegraphing the defendant company at Dallas, Texas, asking for the lowest price for 500 or 2,000 spayed heifers, delivered at Mingusville or Newcastle. Telegraphic [405]*405communication was kept up, in relation to prices, numbers, kind and time and place of delivery, until the 5th of July, when it was claimed the contract was finally consummated. We think it cannot be contended, from anything in these dispatches or communications, that the defendant knew or believed the plaintiff was even pretending to represent it, in endeavoring to negotiate the sale of the cattle, until about the 1st of July. The evidence shows that the plaintiff commenced negotiations with defendant by wire at the instance of I. Myer, agent of Nelson Morris. All along, up to July, in his dispatches to the defendant, plaintiff speaks of his buyer; asks for an option, and for time for his buyer to go to the ranches and see the cattle. So apparently satisfied was the defendant that the plaintiff was not representing it in the transaction, that it telegraphed plaintiff, on the 22d of June, asking to whom it should make the contract; and on the 24th of June the defendant telegraphed a contract, in which it named the plaintiff as the purchaser. Nor did the plaintiff ever intimate that he expected commission to be paid by defendant until, the last of June, declining to sign the contract defendant had wired him, he forwarded a contract to the defendant, prepared by himself, and in a personal letter to Buster, received July 2d, claimed commission. In reply to this communication, Buster telegraphed on the 2nd of July: ‘‘ Have dealt with you as principal, leaving no margin for commission, but, as the thing has gone so far, am willing to sign contract allowing you five hundred dollars. ’ ’
From this consideration of the record, we are clearly of the opinion that there was ample evidence to sustain finding No. 17, to the effect that defendant did not employ the plaintiff as its broker to negotiate the alleged sale of cattle. We think the evidence also supports finding No. 20, to the effect that plaintiff made no claim to commission from the defendant until the 27th day of June, when he forwarded the contract prepared by himself, and sent the personal letter to Buster.
But counsel for appellant contends that, even if no contract, express or implied, has been shown, as alleged in the com[406]*406plaint, still the evidence shows a ratification of the contract of sale by the defendant. When plaintiff sent the contract of sale, on which he sues, to the defendant for its signature, which was received at Dallas, Tex., on the 2d of July, there was only one cattle brand (the “hash-knife”) mentioned therein, although the defendant owned other brands, which fact plaintiff knew, or should have known, as the evidence shows. Buster, immediately on receipt of this contract, telegraphed plaintiff: “Cannot sign contract, as it only includes one brand, — we have three. Besides, don’t think, under circumstances, we should pay commission. Shall start Montana at once.” Upon receipt of this dispatch, plaintiff telegraphed Buster: “Will not be any trouble about brands, — • merely used hash-knife as general brand your company. Buyer gone east for ten days. Answer if you will sign contract, yes or no.” Buster on the same day replied, “I’m willing to sign contract covering all brands, but will not pay commission.” Upon the receipt of this dispatch, plaintiff wired Buster: ‘ ‘At commencement correspondence about your cattle, May 26th, I stated, ‘Have two buyers spayed heifers, ’ and showing clearly I was not the. principal, and, if sale was made, it would be subject to my usual commission. You accepted price and terms, and I made contract, which has been executed by my buyer. My buyer is out of town, and, as you wish to back out, I will wire him that can duplicate purchase from you at much lower prices, and recommend that deal with you be dropped. I will not sell cattle for any one without commission, and cannot understand your course. My buyer will not pay any commission, and my expenses for telegrams in this matter are considerable. Brand matter all right. Answer. ’ ’
This dispatch deserves to be noticed'with some particularity. The telegraphic correspondence in evidence shows that, prior to Buster’s notifying plaintiff that he would start at once for Montana, plaintiff had urged him to come and see buyer and arrange about brands, which seemed to be an obstacle in the way of consummating the sale. As soon as Buster notifies [407]*407plaintiff that he is coming, plaintiff wires him that his buyer ‘ ‘has gone east for ten days.‘‘ In this dispatch now under discussion, plaintiff says: . “At commencement correspondence about your cattle, May 26th, I state, ‘have two buyers spayed heifers, ’ and showing clearly I was not the principal, and, if sale was made, it would be subject to my usual commission.” The evidence does not bear out this part of the dispatch, in a single particular. This is clearly a misstatement of the facts as shown by the correspondence itself. Further on in this dispatch is this remarkable statement, coming from one who claims to be the broker of the defendant: “My buyer is out of town, and, as you wish to back out, I will wire him that can duplicate purchase from you at much lower prices, and recommend that deal with you be dropped. ’ ’ This seems to us strange language, coming from plaintiff, who claims to be the broker of the defendant, and consequently under legal obligation to act in good faith towards, and for the best interests of, his principal. It seems to us that, when matters had arrived at this stage, it became the duty of the plaintiff, if he claimed to be acting as defendant’s broker, to have made some effort to arrange and settle the difficulties arising on account of the brands of cattle. He claimed that he could arrange the matters, and assured the defendant that there would be no trouble about brands. In a letter written by plaintiff to defendant after the deal had fallen through, he says, “I was legally acting as agent for both seller and buyer, and had a right to correct a clerical error or omission in a document drawn up by myself.” This language appears strange, too,, when we consider that the plaintiff testifies that he was acting solely for the defendant in the matter. This evidence does not impress us with the conviction that plaintiff was acting in good faith in the matter towards his alleged principal, or for the promotion of its best interests.
But, passing the question of the good faith of the transaction on the part of plaintiff, let us notice the further showing, in which plaintiff undertook to conduct the negotiations for his alleged principal. The defendant telegraphed a contract [408]*408to plaintiff that was free from any complications or difficulties as to brands, for signature, as shown above, supposing plaintiff to be the principal in the deal.
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Pemberton, C. J.
The principal contention of counsel for appellant is that the evidence does not justify the findings and judgment of the court. The negotiations of the parties in reference to the alleged sale of cattle were conducted almost entirely by telegraph. The telegrams are all in the record. Without embodying them, we will quote so much of them as shall seem necessary, as we proceed in the discussion of the case. From an inspection of these telegrams, it clearly appears that the negotiations in reference to the sale of the cattle were opened and begun on the 26th day of May, 1890, by the plaintiff’s télegraphing the defendant company at Dallas, Texas, asking for the lowest price for 500 or 2,000 spayed heifers, delivered at Mingusville or Newcastle. Telegraphic [405]*405communication was kept up, in relation to prices, numbers, kind and time and place of delivery, until the 5th of July, when it was claimed the contract was finally consummated. We think it cannot be contended, from anything in these dispatches or communications, that the defendant knew or believed the plaintiff was even pretending to represent it, in endeavoring to negotiate the sale of the cattle, until about the 1st of July. The evidence shows that the plaintiff commenced negotiations with defendant by wire at the instance of I. Myer, agent of Nelson Morris. All along, up to July, in his dispatches to the defendant, plaintiff speaks of his buyer; asks for an option, and for time for his buyer to go to the ranches and see the cattle. So apparently satisfied was the defendant that the plaintiff was not representing it in the transaction, that it telegraphed plaintiff, on the 22d of June, asking to whom it should make the contract; and on the 24th of June the defendant telegraphed a contract, in which it named the plaintiff as the purchaser. Nor did the plaintiff ever intimate that he expected commission to be paid by defendant until, the last of June, declining to sign the contract defendant had wired him, he forwarded a contract to the defendant, prepared by himself, and in a personal letter to Buster, received July 2d, claimed commission. In reply to this communication, Buster telegraphed on the 2nd of July: ‘‘ Have dealt with you as principal, leaving no margin for commission, but, as the thing has gone so far, am willing to sign contract allowing you five hundred dollars. ’ ’
From this consideration of the record, we are clearly of the opinion that there was ample evidence to sustain finding No. 17, to the effect that defendant did not employ the plaintiff as its broker to negotiate the alleged sale of cattle. We think the evidence also supports finding No. 20, to the effect that plaintiff made no claim to commission from the defendant until the 27th day of June, when he forwarded the contract prepared by himself, and sent the personal letter to Buster.
But counsel for appellant contends that, even if no contract, express or implied, has been shown, as alleged in the com[406]*406plaint, still the evidence shows a ratification of the contract of sale by the defendant. When plaintiff sent the contract of sale, on which he sues, to the defendant for its signature, which was received at Dallas, Tex., on the 2d of July, there was only one cattle brand (the “hash-knife”) mentioned therein, although the defendant owned other brands, which fact plaintiff knew, or should have known, as the evidence shows. Buster, immediately on receipt of this contract, telegraphed plaintiff: “Cannot sign contract, as it only includes one brand, — we have three. Besides, don’t think, under circumstances, we should pay commission. Shall start Montana at once.” Upon receipt of this dispatch, plaintiff telegraphed Buster: “Will not be any trouble about brands, — • merely used hash-knife as general brand your company. Buyer gone east for ten days. Answer if you will sign contract, yes or no.” Buster on the same day replied, “I’m willing to sign contract covering all brands, but will not pay commission.” Upon the receipt of this dispatch, plaintiff wired Buster: ‘ ‘At commencement correspondence about your cattle, May 26th, I stated, ‘Have two buyers spayed heifers, ’ and showing clearly I was not the. principal, and, if sale was made, it would be subject to my usual commission. You accepted price and terms, and I made contract, which has been executed by my buyer. My buyer is out of town, and, as you wish to back out, I will wire him that can duplicate purchase from you at much lower prices, and recommend that deal with you be dropped. I will not sell cattle for any one without commission, and cannot understand your course. My buyer will not pay any commission, and my expenses for telegrams in this matter are considerable. Brand matter all right. Answer. ’ ’
This dispatch deserves to be noticed'with some particularity. The telegraphic correspondence in evidence shows that, prior to Buster’s notifying plaintiff that he would start at once for Montana, plaintiff had urged him to come and see buyer and arrange about brands, which seemed to be an obstacle in the way of consummating the sale. As soon as Buster notifies [407]*407plaintiff that he is coming, plaintiff wires him that his buyer ‘ ‘has gone east for ten days.‘‘ In this dispatch now under discussion, plaintiff says: . “At commencement correspondence about your cattle, May 26th, I state, ‘have two buyers spayed heifers, ’ and showing clearly I was not the principal, and, if sale was made, it would be subject to my usual commission.” The evidence does not bear out this part of the dispatch, in a single particular. This is clearly a misstatement of the facts as shown by the correspondence itself. Further on in this dispatch is this remarkable statement, coming from one who claims to be the broker of the defendant: “My buyer is out of town, and, as you wish to back out, I will wire him that can duplicate purchase from you at much lower prices, and recommend that deal with you be dropped. ’ ’ This seems to us strange language, coming from plaintiff, who claims to be the broker of the defendant, and consequently under legal obligation to act in good faith towards, and for the best interests of, his principal. It seems to us that, when matters had arrived at this stage, it became the duty of the plaintiff, if he claimed to be acting as defendant’s broker, to have made some effort to arrange and settle the difficulties arising on account of the brands of cattle. He claimed that he could arrange the matters, and assured the defendant that there would be no trouble about brands. In a letter written by plaintiff to defendant after the deal had fallen through, he says, “I was legally acting as agent for both seller and buyer, and had a right to correct a clerical error or omission in a document drawn up by myself.” This language appears strange, too,, when we consider that the plaintiff testifies that he was acting solely for the defendant in the matter. This evidence does not impress us with the conviction that plaintiff was acting in good faith in the matter towards his alleged principal, or for the promotion of its best interests.
But, passing the question of the good faith of the transaction on the part of plaintiff, let us notice the further showing, in which plaintiff undertook to conduct the negotiations for his alleged principal. The defendant telegraphed a contract [408]*408to plaintiff that was free from any complications or difficulties as to brands, for signature, as shown above, supposing plaintiff to be the principal in the deal. Plaintiff saw fit not to adopt this contract, but prepared one himself that stated the cattle should bear the hash-knife brand on both sides, and, when objections were urged to it on that account, he assured his principal that no trouble would result therefrom; claiming authority or ability to adjust the difficulty with the buyer, and threatening to declare the deal off unless defendant signed it as he had written it. Upon the receipt of this rather remarkable telegram, W. E. Hughes, president of the defendant company, wired plaintiff: “Can’t reach Buster, as'he is en route. Will stand by contract allowing commission. Is this final and satisfactory?” Plaintiff replied it was satisfactory. It seems that Buster took the contract plaintiff had prepared and forwarded to the defendant, and went to Chicago, where he met Morris, the buyer. He there called the attention of Morris to the fact that the def?ndant did not have the number of cattle, or anything like the number, especially of spayed heifers, bearing the brand specified in the contract, and sought to have the contract amended so as to include other brands, from which defendant could furnish the number of cattle called for by the contract. Morris refused to take any other cattle than those branded with the hash-knife brand, as specified in the contract. Defendant could not possibly furnish thato brand of cattle, to the number named in the contract, although anxious to do so from other brands. It does not appear anywhere that plaintiff, if he had the power or ability to remedy the contract as to the brands, ever did so, or attempted to do so. Morris having declined to take any cattle not in the hash-knife brand, and the defendant being unable to furnish the number of that brand mentioned in the contract, Buster wired plaintiff the contract was off.
From this statement of the facts, does it follow, as contended by counsel • for appellant, that defendant ratified the contract, and legally bound itself to pay plaintiff his commission, by the promise of Hughes to ‘ ‘ stand by contract and al[409]*409low commission ? ” Appellant’s counsel contend that the court so found, as shown by finding No. 18. It is true that the court found in said finding that the voluntary acts of plaintiff in the transaction had been ratified. But the court attached no importance to this finding, as in connection therewith the court says the finding is outside of the pleadings, as the complaint alleged a refusal on the part of the defendant to ratify the contract made by the plaintiff. At any rate, this finding must be construed in connection with the other findings, if it is material at all. In finding No. 28 the court says : “William E. Hughes, the president of the defendant company, promised, by telegram dated the 5th of July, 1890, to pay the plaintiff commissions at the rate of one per cent, upon the gross amount of the alleged sales of said cattle, but when he made this promise he had been assured by the plaintiff that the brand matter was all right. ’ ’
We think there is ample evidence to sustain the conclusion reached by the court that the pretended ratification of the contract made by plaintiff for the sale of the cattle, and the promise of defendant to pay commission, were based upon the assurance given by plaintiff that the brand difficulty would be arranged, and cause no trouble. The agreement to stand by the contract, and the promise to pay commission, were made upon such assurance on the part of plaintiff; and, but for such assurance, there is nothing in the record to sustain the contention that such agreement and promise would ever have been made by defendant. They were made .upon a misunderstanding and want of knowledge as to the true facts of the case. For such misunderstanding and want of knowledge of the facts, plaintiff is certainly responsible. He was responsible for the complications and difficulties contained in the contract as to the brands of the cattle. He wrote it himself. He assured defendant that these difficulties could be removed, or would give no trouble. It was his duty to see that this was done. He did not do it, or attempt to do it. He left his alleged principal with a contract it could not comply with or enforce without expensive, serious and doubtful litigation. When defend[410]*410ant became aware of the true condition of affairs, and ascertained that Morris would not accept a modification of the contract, it had a right to repudiate the action of plaintiff, which was valueless to it. Before it can be contended that defendant legally ratified the acts of plaintiff, and agreed to pay com-, mission, it must appear that the ratification and promise to pay occurred and were made with - full knowledge of all the conditions and facts pertaining to the transaction. This does not appear. The court rightly so found. '
There are but two material questions of fact involved in this case : First. Did the defendant employ plaintiff, by express or implied contract, to sell the cattle mentioned in the complaint ? Second. Did the defendant legally ratify the acts of plaintiff in the matter of the contract and sale of the cattle, with a full knowledge of all the facts and conditions pertaining thereto, and, with such knowledge, agree to pay plaintiff the commission he claims ? The court found on both these issues in favor of the defendant. We think the evidence amply sustains the findings.
The appellant contends that the court erred in admitting in evidence a letter written by plaintiff to defendant, in which he admitted that he was legally acting as agent of both parties to the contract, on the ground that this letter was written after the contract had been abandoned. But this letter contains an admission as to the capacity in which plaintiff was-acting pending the negotiations in controversy and, we think, throws light upon the question of the good faith of plaintiff essential to a proper determination of the case. We think it was admissible.
Having fully considered the assignments of error involved in this appeal, we are of the opinion that the evidence amply supports the material findings of fact made by the court. The judgment and order appealed from are therefore affirmed.
Affirmed.
De Witt and Hunt, JJ., concur.