¶1Decided March 28, 1909.
¶2On Petition for Rehearing.
¶4Opinion by
¶5It is contended by plaintiff’s counsel, in a petition for a rehearing herein, that in determining the agency of their client this court passed upon a matter not in issue, and its conclusion is, therefore, a nullity. It is alleged in the answer, in substance, that the plaintiff was a member of a firm of brokers known as Coffman, Smith & Rod-man, with whom the defendants listed their lands for sale; and that by reason of such confidential relation the price which Rodman was to have received for the real property, without disclosing the consideration to the defendants, rendered their agreement to sell ineffectual.
¶6The evidence tended to show that the land was originally registered for sale with a firm composed of Coffman and another, which co-partnership was changed several times, until Rodman became a member thereof; that neither Coffman nor Smith had any interest in the contract which Rodman secured. It is quite probable that the first listing was not so perpetuated as to render the several members of the present firm agents of the defendants. The decree of the lower court is based on the assumption that the agency which was created by the *341original contract did not extend to the firm of Coffman, Smith & Rodman. As the defense was placed on the ground of agency, and the plaintiff’s relation in that capacity has been legally established, the averments of the answer sufficiently notified him of the nature of the issue which he would be required to meet; and this being so, the petition for a rehearing is denied.
¶7Reversed: Rehearing Denied.