After judgment of reversal herein counsel appearing amid curiae were granted leave to file a petition for a rehearing on the representation that the decision in this case would probably have an important bearing on other and important pending litigation in which they and counsel associated with appellant’s counsel were interested. As respondent had filed no brief, and as the importance of the questions involved seemed to warrant it, the rehearing was granted in order that respective counsel might have the opportunity to present more fully both sides of the controversy.

After due reconsideration of the questions involved we are satisfied with and adopt the reasoning and conclusions expressed in the former opinion, and will append such further comment as the additional points and authorities have elicited. As the contentions of amici curiae are all in behalf of the respondent’s position, they will be referredr to and deemed the respondent’s contentions. The former opinion is as follows:

It is conceded on behalf of the respondent that the principal question involved in this case is one of first impression in this state, and it is insisted that it is the first case in the United States involving the point of setting aside a transaction of purchase and sale on the ground of the dual employment of an agent where both principals were unaware of such dual employment. It is suggested that the conse quences flowing from a holding that a transaction involving such duplicity of an agent may be rescinded at the instance of either principal would be disastrous in all dealings wherein agents and brokers are employed, as, for instance, in two illustrations suggested by the respondent: First, in the case of stock brokers, where the purchaser, desiring to acquire the ownership of a certain kind of stock, agrees to compensate the broker for procuring such stock, the seller also paying a commission; and, secondly, in the case of one desiring to purchase a home or property for industrial or other particular purposes, who employs a real estate agent to procure the same for him, the seller also paying a commission in the same .transaction. But the results contemplated by respondent would seem to be more imaginary than real. In the case of a stock brokerage business, it is stated by appellant to be a matter of common knowledge, and such statement is not denied, that persons handling transactions in that line of endeavor, by long-established custom, may collect compensation or a commission from both buyer and seller, in which event they are in the class of known joint agents, for each principal is charged with knowledge of the custom. Likewise, it may Be said that in the case of the purchase and sale of real estate, it is a matter of com-' mon knowledge that the seller usually pays a commission, and that the parties to the transaction in the case at bar were charged with notice of that custom. But we find no sound basis for the conclusion that the appellant under such circumstances was negligent in not notifying the respondent | not to pay Minor a commission, for the appellant had the¡ right to rely upon the presumed good faith of Minor, and to' rest assured that he would not violate his trust and breach the duty which the law imposed upon him. The facts in the case at bar do not present a situation where either principal may be charged with negligence in his relations with the other. It is not intimated that either innocent principal would have a cause of action for damages against the other on account of the duplicity of the ’ common agent. Bather, the facts herein present a situation in which sound public policy demands that a transaction attended by such duplicity and' concealment on the part of an agent as against both innocent principals may not be permitted to stand when, at the instance of either principal, the status qua may he restored. In such cases the personal and selfish interest of the agent is opposed to the interest of both principals. His concern is to see that the transaction is consummated in order to obtain his double commission. By reason of the fiduciary relation to both principals, he is, as to both, in such a peculiar position of trust and confidence that his advice and activities would be influenced by his own self-interest. It is immaterial that these results may not necessarily follow. It is enough that they are likely to follow. It is the policy of the law not to permit an agent to assume a position that will result in such a strain on his honesty. The protection of the public against such duplicity is the foundation for the rule. To deny the right of rescission to either innocent principal would necessarily result in a denial to both, and thus place the parties at the mercy of an unscrupulous agent. It is of no consequence that no fraud was actually intended by the agent, or that the rescinding party suffered no injury (Black v. Miller, supra).

In some of the eases above cited as approving the rule that a contract resulting from dual agency unknown to both principals is voidable at the option of either principal, it did not appear that the duplicity of the agent was unknown to the defending principal. In our consideration of those cases that fact was recognized. Others, however, as, for example, the case of Marsh v. Buchan, supra, are directly in point. Although in some of the cases cited the defending principal had or was chargeable with notice of the dual agency the discussion of the principles of law surrounding such inconsistent relationship recognized the right of either innocent principal to rescind, provided the defending principal could be placed in his former position.

The case of Blair v. Baird, 43 Tex. Civ. App. 134 [ 94 S. W. 116 ], relied on by respondent, is not in point, for the reason that, under the express terms of the contract between the parties, the agent was a joint agent appointed as and known to be such by both parties. Other cases cited on behalf of respondent have been noted, but an examination thereof discloses that they are not out of harmony with the rule as herein approved. Finally, the respondent contends that a principal can only be held liable for the acts of his agent when the same are within the scope of his authority. It is conceded in this case that neither principal knew of the employment of the agent, Minor, by the other, and it may.be assumed that it was beyond the scope of the authority of such agent, as to each principal, to enter the employment of the other without the consent of both; but, when the agent had done so, and thus exceeded his authority, it was optional with either principal to refuse to be bound by his acts, and to rescind the transaction. When, as here, the respondent is standing on the contract, is insisting on his right to retain the benefits and advantages gained thereby, and is contending herein for his right to retain the same after full notice of his agent’s duplicity, he will not be permitted to disclaim responsibility for the representations and concealments of said agent. (Herdan v. Hanson, supra.)

The judgment is reversed and the cause remanded for a new trial, with instructions to the trial court to overrule the demurrer to the cross-complaint.

Richards, J., Lennon, J., Lawlor, J., Seawell, J., and Waste, J., concurred.