Smith and another, Executors, vs. Peckham, Executrix. brought of the "authenticated copy," etc., required by the statute (R. S., ch. 14, sec. 25) cannot help the plaintiff. There must be a strict compliance with the statute. Mansfield v. Turpin, 32 Ga., 260. F. W. Cotzhausen, for respondent: 1. The appellant, by objecting to the allowance of the claim on specific grounds, and by answering on the merits, waived all objections to the legal capacity of the plaintiffs to sue. The appearance and objection to the petition in probate was tantamount to an answer. Brook v. Chappell, 34 Wis., 405; Moir v. Dodson, 14 id., 279; Johnson v. Wilson, 1 Pin., 65; Sanford v. McCreedy, 28 Wis., 103. 2. The disability of plaintiffs was removed by filing the authenticated copy on May 21, 1875. The defect, if any, is of a technical nature, and should be disregarded. Sabine v. Fisher, 37 Wis., 376. The court had the power to allow letters testamentary to be filed at any stage of the suit, nunc pro tunc. RYAN, C. J. Whatever difficulty there may be in the question elsewhere (Story's Confl., §§ 507-529), there appears to be no doubt here that the disability of a foreign executor or administrator to sue in the courts of this state, is mere disability and not want of title. Under our statute (Tay. Stats., ch. 147, § 25), a foreign executor or administrator takes here no new letters, authority or title, but is required only to record the letters, authority and title from the foreign court. Like the record of a conveyance, this is matter of evidence of title, not of title; the title still resting on the grant of the foreign court, though it can be asserted in our courts only upon the record of it. The filing of the foreign letters here is purely ministerial, requiring no action of the court here and giving it no jurisdiction. Before the record, the general disability of a foreign executor or administrator to sue outside of the state granting his letters VOL. XXXIX. - 27 Smith and another, Executors, vs. Peckham, Executrix. continues here; with the record, the disability ceases upon that proof of title under the foreign jurisdiction. Even before the record, the disability can be taken advantage of only by way of abatement. So far as the case can bear any relation to the law of this state, there is no doubt, on principle or authority, that the dissenting opinion in Noonan v. Bradley, 9 Wall., 394, states the correct rule of pleading. And being waived as matter of abatement, it cannot be raised by way of bar. Moir v. Dodson, 14 Wis., 279; Johnson v. Wilson, 1 Pin., 65. See Story's Confl., § 465. And a mere disability to sue, not going to the right of action, may be cured here pendente lite. Sabine v. Fisher, 37 Wis., 376. Indeed, if the disability had not been removed in this case, and it had gone to judgment on the merits for the respondents, it would be a question whether, under sec. 40, ch. 125, R. S., we should be at liberty to reverse the judgment for an erroneous ruling of this point by the court below against the appellant on the demurrer. Hafern v. Davis, 10 Wis., 501; Wheeler v. Smith, 18 id., 651; Bonnell v. Gray, 36 id., 574. The proceeding in the probate court was very informal, and the paper filed by the appellant by way of plea does not raise the question of the respondent's disability. The question was first raised by the demurrer to the formal complaint filed under the order of the circuit court. We are inclined to think that it was then in time (Tarbox v. Supervisors, 34 Wis., 558), if well taken; but the difficulty was removed by the intermediate filing of the letters testamentary of the respond ents. So far we have assumed that the respondents' letters issued from the proper court having jurisdiction at the domicile of their testatrix. But the residence of the testatrix at the time of her death is not averred in the complaint. This is obviously a formal, but appears to us to be a fatal, objection to the complaint. Non constat that the testatrix was not domi Meyer and another vs. Hanchett. ciled in this state when she died, and that the probate jurisdiction of her estate was not here. Of course the proper jurisdiction for the probate of her will, in chief, was that of her domicile at death. Probate of her will elsewhere would be ancillary. The statute is probably intended to relate only to letters testamentary and letters of administration issued in the jurisdiction of the domicile at death. It obviously has no application to cases where the decedent was domiciled here at the time of death, and jurisdiction to administer the estate was in one of our own courts. On that ground only we sustain the demurrer. But the court below should allow the respondents to amend their complaint in this particular. By the Court. The order of the court below is reversed, and the cause remanded for further proceedings in accordance with this opinion. MEYER and another vs. HANCHETT. AGENCY: FRAUD. (1, 3) When one acting as vendor's agent precluded from claiming for services as agent of vendee. PRACTICE. (2) Error in rejecting material evidence not cured by a correct statement of the law in the charge. 1. One who acts as the vendor's agent in the sale of property, without the knowledge of the vendee, cannot recover from the vendee for services in effecting such sale as his agent; his concealment of the fact that he was agent for the vendor being a fraud in the law. 2. Although the law as above stated was correctly given to the jury in this case, the judgment must be reversed for the rejection of material evidence bearing on the question of fact. 3. Whether one who acts as middleman in effecting an exchange of real property, with full knowledge of both parties, can recover from both for his services, is not here decided. APPEAL from the County Court of Milwaukee County. Meyer and another vs. Hanchett. Action to recover a commission upon a sale of real estate, claimed by plaintiffs to have been effected by them as brokers under employment for the defendant. The answer denied the employment, and alleged that if the court should hold that the correspondence of the parties did constitute a contract, then plaintiffs' services were of no value to defendant; that they made false and fraudulent representations as to the value of certain property taken by him in exchange for his own property, upon which representations he relied in making such exchange; and that the person with whom the exchange was made was the plaintiffs' own client, and paid them for effecting the trade. The evidence disclosed the following facts: Plaintiffs were real estate brokers, whose business it was to procure customers for property placed in their hands for sale, the sale itself being usually negotiated by the parties themselves. Being requested by the defendant to secure him a loan upon or a sale of his property, for which, if accomplished, he expressed a willingness to pay liberally, they offered him in exchange a store and stock of goods at Oak Creek, representing it to be of a certain value, greater than its real value, and also representing that the owner, Mr. Hobart, whom in their correspondence they styled their "customer," was thoroughly reliable, and that whatever he said might be depended upon. Defendant sent out an agent, who looked at Hobart's property, and with whom Hobart returned to view defendant's farm; and after the examination, the parties effected a trade between themselves. Plaintiffs admitted, for the purposes of the case, that prior to and at the time of the exchange, they had a contract with Hobart, by which they were to assist him in selling his property at Oak Creek for a compensation. The court rejected defendant's offers to show, in substance, that he had no notice from plaintiffs, and no knowledge, that in negotiating the exchange of property between himself and Meyer and another vs. Hanchett. Hobart, they expected to receive compensation from both himself and Hobart, or had any understanding with the latter that he should compensate them. The evidence so rejected is more fully stated in the opinion; as also certain instructions given to the jury upon the same subject. The plaintiffs had a verdict and judgment for $857.22; and defendant appealed from the judgment. Geo. H. Noyes, for appellant: 1. It is well settled that to entitle a real estate agent to recover compensation from both vendor and vendee, the contract with the vendor must be a specific one, to do some particular act, as merely to find a party ready and willing to purchase at a price fixed by the vendor, or to procure an interview with a certain person; and the contract must be such as to clearly show that the hiring was for this particular act, and not a general employment for the purposes of a sale or exchange. Herman v. Martineau, 1 Wis., 155; Mullen v. Keetzleb, 7 Bush, 253; Rupp v. Sampson, 16 Gray, 398; Stewart v. Mather, 32 Wis., 355. The hiring in this case was a general one, and plaintiffs could not perform their duty to the defendant and at the same time serve Hobart for compensation. 2. The only theory on which a recovery could be had was, that the relations of the plaintiffs to both parties was made known to the defendant, and that he had consented to their so acting. There was no evidence whatever of such knowledge or consent, and a nonsuit should have been granted. Farnsworth v. Hemmer, 1 Allen, 494; Walker v. Osgood, 98 Mass., 348; Everhart v. Searle, 71 Pa. St., 256; Lloyd v. Colston, 5 Bush, 590. The onus rested upon the plaintiffs; but defendant should have been permitted to show what the fact was, and the instructions given by the court were based upon the theory that the testimony offered was or should have been admitted. 3. A broker employed to sell a farm or dispose of it by way of exchange for other real estate, cannot charge the owner of the latter a commission for effecting the |