case, to plaintiff, or that such one-fourth was demanded of him before he paid it over to Phinney and O'Callahan.

There were no errors in the admission of testimony. It was competent for plaintiff to show that he had a verbal option to sell these lands, as between him and the defendant. No question arises in this case as to the enforcement of a conveyance under this option. The land was conveyed; and the plaintiff had the right to show that he was verbally authorized by Phinney to sell the lands at a certain price, and that Phinney was authorized by the owners to sell at another price, as bearing on the questions involved in this case.

It was also proper for him to show that in a conversation with Donovan the latter presented him with a receipt, and requested him to sign it in full, on payment of $1,086.25, which receipt he read, and handed back to Donovan, declining to take that amount, or to sign the receipt, and to state what the receipt contained, without producing the same, or giving notice to Donovan to produce it. The receipt was not executed, or relied upon as an executed paper. It was simply a part of the conversation, the same as if Donovan had read to him, or handed him to read, any other written or printed communication, and kept it, or received it back again into possession. Whart. Ev. § 1016. This testimony could not have hurt the defendant, any more than a statement by plaintiff that defendant asked such a receipt from plaintiff, without having one already prepared in writing. The defendant could deny the fact sworn to in either case, and his denial would be of equal force to meet plaintiff's assertion.

Defendant's counsel requested the court to direct a verdict in behalf of his client. This was properly refused. In regard to the Boeing tract, the testimony tending to

show that Donovan was acting in that purchase under his contract with plaintiff was not very strong; but still we think there was sufficient evidence to go the jury, who were properly instructed that the burden of proof was upon the plaintiff.

It is strenuously argued here that the contract between Ranney and Donovan was against public policy, and that this should have defeated plaintiff's recovery; that the testimony shows that neither the owners of the land, nor Phinney or O'Callahan, knew of the contract between Ranney and Donovan; that Ranney was the agent of Phinney for the sale of these lands, and was getting both. a commission from the seller and the buyer; and that he was neglecting his duty to his principal, Phinney, when he undertook to gain additional compensation for himself. The counsel for defendant cites the following cases in support of his contention: Scribner v. Collar, 40 Mich. 375; Walker v. Osgood, 98 Mass. 348; Smith v. Townsend, 109 Id. 500; Rice v. Wood, 113 Id. 133; Lynch v. Fallon, 11 R. I. 311; Everhart v. Searle, 71 Penn. St. 256; Raisin v. Clark, 41 Md. 158; Morrison v. Thompson, L. R. 9 Q. B. 480; Oscanayan v. Arms Co., 103 U. S. 261.

In

These authorities, in my opinion, do not apply. this case neither the buyers nor sellers of these lands were defrauded by the transaction, and they are not complaining. Both Sawyer, Goodman & Co. and Boeing had fixed the price upon their lands before this contract was made, and had in effect agreed that the brokers Phinney and O'Callahan could sell their lands at a certain price to them, without reference to what the brokers might get for the same from the buyers. Donovan, from his own showing, was a broker, and was buying these lands to sell again. The price at which he took them was also fixed when he made his contract; and he paid without question the difference between what he was to pay the

brokers Phinney and O'Callahan and the purchasers to such brokers, and yet did not pay more than his contract price with plaintiff. It is claimed that Phinney would be defrauded if plaintiff is allowed to recover, as he testifies that he did not know that plaintiff was to have half of Donovan's profits, and that such arrangement was made by Ranney without his consent, and contrary to the agreement he he had with Ranney. But it appears, from Phinney's testimony as well as Ranney's, that they had agreed to sell the Goodman tract at $47,000, and the Boeing tract at $1.65 per 1,000, before the contract was entered into between Ranney and Donovan. The case,

then, stands like this: The owner of lands says to broker A., "You may sell this land for me at a certain price," say $10,000. Broker A. says to broker B., "You may find a purchaser at $11,000, and we will divide the profits." Broker B. then makes a contract with broker C. that C. may sell the land for him at $11,000, and share with him half of all C. may obtain over the $11,000. C. sells for $12,000, and refuses to divide with B., upon the ground that the contract, not being known to A. or the owner of the land, is against public policy. If this contention. be correct, then there can be but one middleman between the buyer and the seller, without the consent and knowledge of all the parties connected with the sale and purchase. We do not think the law goes as far as this. The rule invoked by defendant's counsel applies to such a case as Scribner v. Collar, supra. In that case no price was fixed by the seller, but Scribner and Potter agreed to take the farm property of Collar for sale or exchange at a commission of 24 per cent. At the same time they had a similar contract with persons by the name of Warren, who also had a farm for sale or exchange. Of this Collar was ignorant. A trade between Collar and the Warrens was effected. Here the Court held Scribner and Pot

ter were the agents of both parties to the trade. They were not employed simply as middlemen to bring the parties together.

"It [the contract] conferred authority to negotiate, and reposed confidence, and contemplated that the plaintiffs should act in defendants' interest, and should exert their judgment and their influence in their behalf."

For this reason it was held that public policy would not admit of Scribner and Potter being in the employ of both parties.

In this case at bar, Ranney had no power to negotiate; and no confidence was reposed in him that he should use his best judgment and efforts to get a large price for the lands. All he was to do was to find a purchaser at a certain sum, fixed and agreed upon. When he did this, he was entitled to all he could get out of the purchaser over and above such price. The owners of the land were not to pay him anything, and his compensation from Phinney depended upon the agreement made between them to sell the land at a fixed price above what the owners asked, and to share the profits together. Neither his efforts nor judgment were to be employed to get a greater price. It may be that there was such a copartnership or joint dealing between himself and Phinney as would entitle Phinney to share in his contract with Donovan (see Grant v. Hardy, 33 Wis. 668); but this could not affect his right to recover from Donovan. Donovan agreed to pay Ranney one-half of the profits made by him over and above a fixed sum, which was named, for each piece of land; and there was no fraud upon him in the transaction. He made the agreement with his eyes open; and it could make no difference to him to whom he paid the purchase price, which was fixed by his contract. He does not complain of any fraud upon himself, but sets up the fraud of Ranney against

Phinney in his defense. This he cannot do, as he is not concerned with it, if it exists. Hardy v. Stonebraker, 31 Wis. 640. It has been held, and I think correctly, that a broker who merely brings the parties together, and has no hand in the negotiations between them, and where they make their own bargain without his aid or interference, can receive legally a compensation from both of them, though each was ignorant of his employment by the other. Mullen v. Keetzleb, 7 Bush, 253; Herman v. Martineau, 1 Wis. 151; Grant v. Hardy, 33 Id. 668; Rupp v. Sampson, 16 Gray, 398; Collins v. Fowler, 8 Mo. App. 588; Orton v. Scofield, 61 Wis. 382 (21 N. W. Rep. 261); Barry v. Schmidt, 57 Id. 172 (15 N. W. Rep. 24).

This is the case here. No confidence was reposed in Ranney, by anybody, that he would exert his skill or judgment to get as large a sum as possible for the lands, or, on the other hand, to procure the same for as low a price as possible. He was simply acting as a go-between, a middleman,-to bring the buyer and seller together, to make their own bargain; the seller having fixed his price to start on. This was all he did. The fact that he received the right to act through or from another middleman, or turned the matter over into the hands of another broker, upon a contract with him to share half of the price obtained by such broker over and above the price fixed by him and Phinney as the selling price of the lands in their hands, does not render the transaction void as against public policy, and is no defense against the contract by Donovan. Stewart v. Mather, 32 Wis. 344; Hardy v. Stonebraker, 31 Id. 640.

We find no other errors in the record. For those noted the judgment must be reversed, and a new trial granted, with costs of this Court to defendant.

The other Justices concurred.