¶1On Motion for Rehearing
¶2Appellant in his motion for rehearing, among other things, complains because this Court did not specifically write upon several of his numerous points. One of which is, point 8, reading as follows: “The error of the court in not allowing proof by appellant as to appellee’s knowledge that Townsend was not financially able to purchase the rose bushes of appellant, as being a ready, willing and able purchaser.” With reference to this matter we quote from the' statement of facts (on cross-examination of appellee Robinson) on pages 80 to 83, inclusive, as follows:
“Q. Subsequent to securing this purported purchase order here, did both you and Mr. Ray determine that Townsend Nurseries was not financially able to buy the roses they had ordered? A. No, sir, we did not.
“Q. At any time after this particular order, did Townsend Nurseries attempt to get you to accept a note for $2,000.00 which they stated would be a negotiable note ? A. Mr. Ray—
“Q. You can answer that yes or no, I believe, sir. Did you get such a note ? A. Through the mail, yes, sir.
“Q. As a result of securing that note through the mail, did you and Mr. Ray go to the Lindale Bank at Lindale, Texas, to determine if that note was a bankable or negotiable note ? A. I went with Mr. Ray to the Lindale State Bank to find out something about the note, yes, sir.
“Q. As a result of having gone to the Lindale Bank, did you find out, at that time, that such note was not a bankable note and not so considered by the bank in Salisbury, Maryland? A. I am confused with the term ‘bankable’ note.
“Q. I will put it this way— A. Very difficult for me to answer, Mr. Saunders.
“Q. I don’t want to confuse you, and will put it this way: As a result of giving *164that note, a note able to be considered as a bankable note is one that you could discount or , sell or assign at a bankable institution. A. I understood that is what Mr. Ray wanted to do.
“Q. Could he do that? A. The bank that that' was drawn on in Salisbury, Maryland was — my understanding, the Bank called and asked’ if they would discount the note and send the money to Mr. Ray, and my understanding was the bank in Salisbury refused.
“Q.' At that time, did you find out in any manner so that the knowledge was brought home to you and to Mr. Ray that Townsend Nurseries was not a solvent company and that they had judgments against them? A. No, sir.
“Q. Did you, thereafter, through Mr. Vanberg find out they had judgments against them?
“Mr. Lawrence. That would be hearsay statement and would not be proof on the matter, and mere conjecture of the third party whom we have not had opportunity to cross-examine.
¶3The Court. Sustain.
“Q. Do you now have knowledge regardless of the source you secured it from, that Townsend Nurseries in the fall of 1951 had judgments against them? A. Nothing other than from what Mr. Ray told me.
. “Q. You now know they have, subsequently in June of 1952, taken bankruptcy, do you not? A. No, sir, I do not.
“Q. 'You don’t know that? A. No, sir.
“Q. Do I understand you to say Mr. Vanberg of the- Mahon Color Press didn’t tell you they had judgments against them?
“Mr. Lawrence. Council is repeating a question the Court has ruled on.
“The Court. Sustain as to what a third party told him.
“Q. You so testified in your deposition, didn’t you?
“Mr. Lawrence. We all know we take depositions when The Court is not present and objections not made, and because Counsel' asks a question does not make it admissible and we ask that counsel be- instructed not to repeat the question.
“The Court. You make the same objections now?
“Mr. Lawrence. Yes, si'r, and because he asked the question in his deposition doesn’t make it admissible.
“The Court. Sustain the objection.
“Q. You say Mr. Ray told you had judgments against him? A. Yes, sir.
“Q. Then you did have knowledge, after receiving that order, that Townsend Nurseries had judgments against them and was not a solvent ready, willing and able buyer ?
“Mr. Lawrence. Object. The mere fact that one of the parties told another might be what he thought but no knowledge the concern is insolvent. The question is not proper and we object.
“The Court. Sustain. The jury has the testimony what Mr. Ray told him and whether a fact would be a matter for the jury to determine.
“Mr. Saunders. Before a broker is entitled to commission, he would have to secure a ready, willing and able buyer, financially able, and the purpose of this testimony is to show that. We except to the ruling of the Court.
“The Court. I have ruled. You may have your exception.” (Emphasis ours).
¶4It is clearly apparent from the above testimony given and the testimony sought to be elicited that appellee Robinson did not have any' knowledge, at the time the contract between Townsend and Ray was entered into that Townsend could not perform his contract. In fact, any alleged information that Robinson got to that effect was given him by hearsay subsequent to the date of the contract. Robinson further testified-, directly that subsequent to the order in question he did not know that Town*165send was not financially able to buy the roses they had ordered and he did not have knowledge now (at the time of the trial) that Townsend Nurseries in the fall of 1951 had judgments against them, except as to what Mr. Ray, the appellant, told him. The record does not show that Robinson had any prior knowledge of any alleged financial inability of Townsend to perform the contract at the time it was executed, and we further think that the record clearly reflects that Robinson acted in complete good faith in securing the order in question. We think it is also clear from the record that appellant Ray entered into a firm contract with Townsend, accepted him as a purchaser, received $2000 from him as a part of the purchase price of the roses, with the balance to be paid cash on delivery. The jury further found, upon evidence we deem sufficient, that the appellant Ray wilfully failed to fill the Townsend order. The record also shows that Ray made a later sale of roses to Townsend in May, 1952 (on which sale Robinson, of course, received no commission) which we think was highly material on the issue of whether Ray wilfully failed to fill the earlier Townsend order in question on which Robinson claimed commissions. We think the trial court correctly excluded the hearsay testimony above outlined. We specifically overrule appellant’s eighth point under the following authorities cited in the original opinion of this Court, to-wit: Francis v. Foster, Com.App., 113 Tex. 521, 260 S.W. 1023; Keener v. Cleveland, Tex.Com.App., 250 S.W. 151; and 9 Corpus Juris 631; 12 C.J.S., Brokers, § 95.
¶5We have also carefully considered appellant’s motion for rehearing and all of his other contentions, and have concluded that our original opinion is correct. All points not specifically written upon are without merit and are overruled.
¶6Appellant’s motion for rehearing is in all things overruled.