Meyer and another vs. Hanchett. exchange, nor could he collect such commission even under an agreement therefor, or by proof of a custom among brokers authorizing it. Raisin v. Clark, 41 Md., 158; Am. Law Reg., Jan., 1876, p. 61. F. W. Cotzhausen, contra, contended that the plaintiffs were middlemen merely, and not agents of the defendant for the sale or exchange of his farm, standing to him in a fiduciary relation and having some discretion and control over the conditions of sale; that their business was simply to find purchasers or opportunities for sale, leaving the parties to negotiate and deal with each other at pleasure; that the law leans to that construction of the contract which will secure to the broker his commission (Stewart v. Mather, 32 Wis., 344); and that the defendant's knowledge of the relations of the plaintiffs to Hobart was shown in the correspondence of the parties, and would be presumed from his knowledge of the general character of plaintiffs' business. COLE, J. The counsel for the plaintiffs admitted on the trial that, prior to and at the time of the exchange of the defendant's farm for the Oak Creek property, the plaintiffs had a contract with Hobart, by which they were to assist him in selling his property at Oak Creek for a compensation. Thereupon the defendant offered to prove by Meyer, one of the plaintiffs, that the plaintiffs did not notify the defendant that, in negotiating or assisting in negotiating this exchange, they were to ask for or strive to recover compensation from both him and Hobart, and that in pursuance of the agreement with Hobart they had received compensation from him for their services. This testimony was excluded by the court. In the same connection the defendant proposed to prove by his own testimony, that no notice was given to him by the plaintiffs, and that he did not know, that they intended to charge, or had charged, and would endeavor to recover, compensation from both him and Hobart, and that they did not Meyer and another vs. Hanchett. notify him, and he did not know, that they had any understanding with. Hobart for compensation; which testimony was also excluded by the court. It seems to us very plain that the court erred in excluding the evidence offered, especially in view of the admission that prior to and at the time the exchange or trade of the different properties was effected, the plaintiffs had a contract with Hobart by which they were to assist him in selling his Oak Creek property for a compensation. The object of the testimony was to prove the precise relations which the plaintiffs occupied both in respect to Hobart and the defendant, and to establish the fact that they were acting as agents for both parties in the transaction, while concealing that fact from the defendant. It is well settled that the plaintiffs could not recover for services rendered while holding such entirely incompatible relations. It would be a fraud for the plaintiffs to conceal from the defendant the fact that they were employed to aid Hobart in the disposition of his property, while acting as his agent. Upon this point the law is so clearly stated by BIGELOW, C. J., in Farnsworth v. Hemmer, 1 Allen, 494-5, that we cannot do better than quote his language. "The principle," says the learned chief justice, "on which rests the well settled doctrine, that a man cannot become the purchaser of property for his own use and benefit, which is intrusted to him to sell, is equally applicable where the same person, without the authority or consent of the parties interested, undertakes to act as the agent of both vendor and purchaser. The law does not allow a man to assume relations so essentially inconsistent and repugnant to each other. The duty of an agent for a vendor is to sell the property at the highest price; of the agent of the purchaser, to buy it for the lowest. These duties are so utterly irreconcilable and conflicting that they cannot be performed by the same person without great danger that the rights of one principal will be sacrificed to promote the interests of the other, or that neither of them will enjoy the benefit of a dis Meyer and another vs. Hanchett. creet and faithful exercise of the trust reposed in the agent. As it cannot be supposed that the vendor and purchaser would employ the same person to act as their agent to buy and sell the same property, it is clear that it operates as a surprise on both parties, and is a breach of the trust and confidence intended to be reposed in the agent by them respectively, if his intent to act as agent of both in the same transaction is concealed from them." Equally distinct and emphatic is the language of the courts upon precisely the same question, or kindred ones, in Rupp v. Sampson, 16 Gray, 398; Walker v. Osgood, 98 Mass., 348; Bollman v. Loomis, 41 Conn., 581; Everhart v. Searle, 71 Pa. St., 256; Raisin v. Clark, 41 Md., 158; Morrison v. Thompson, Law Reports, 9 Q. B., 480; Lloyd v. Colston, 5 Bush, 587; Stewart v. Mather, 32 Wis., 344; Grant v. Hardy, 33 id., 668; In re the Taylor Orphan Asylum, 36 id, 534. See also Story on Agency, $$ 31 and 211 and cases in notes. In this case the court below instructed, at the request of the defendant, that if the jury found from the testimony that the plaintiffs were employed by the defendant to assist in negotiating the sale or exchange of his farm, and at the same time were employed by Hobart to negotiate or assist in negotiating the sale or exchange of his Oak Creek property for a compensation, and concealed the fact of their agency for Hobart, and the defendant did not know of it, and had no knowledge that the plaintiff's intended to charge both him and Hobart commissions, then there could be no recovery; though the evidence was excluded to which this proposition of law was applicable. It is unnecessary to remark that if the proposition of law is correct-as it doubtless is, the proposed evidence should have been admitted. Nor do we deem it any sufficient answer to say that the evidence excluded could not have aided the defendant, because the inference was plain from the letters of the plaintiffs written to him during the negotiations, that their precise relations to Hobart were Meyer and another vs. Hanchett. known to him. As a matter of construction or inference, it is impossible to say that the letters disclosed the true relations between the plaintiffs and Hobart, and showed that they were acting for him in effecting the trade or exchange of the different properties for a compensation; and the defendant offered to prove by his own testimony that the plaintiffs did not notify him of that fact, and that he did not know that they had any understanding with Hobart for compensation. It would be improper for us at this time to express any opinion on the question discussed, whether the employment of the plaintiff's by both Hobart and defendant did or did not involve something more than the duty of a "middleman." Nor, as the case now stands, can we consider the further question whether the plaintiffs could recover their fees from the defendant providing their actual relations to both parties had been fully known to him, and he had thereafter consented to their so acting. To this extent the cases are in accord, that the agent of one person cannot, without his knowledge and consent, act for the other party in the same transaction, where the interests of the opposite parties are adverse. "Even custom or usage will not be allowed to extend the right to act for and receive compensation from both parties, to matters in which the interests of the parties are or may be diverse." Walker v. Osgood; Farnsworth v. Hemmer; Raisin v. Clark. But as there must be a new trial on account of the improper rejection of evidence, any further discussion of the questions. involved would be inappropriate. By the Court.-The judgment of the county court is reversed, and a new trial ordered. Redmond vs. The Galena & Southern Wisconsin Railway Company. REDMOND VS. THE GALENA & SOUTHERN WISCONSIN RAILWAY COMPANY. JUSTICE'S COURT. (1) Jurisdiction of statutory action against railroad company, for work in building road. RAILROAD COMPANY. (2) Liable in statutory action to employees of subcontractor in the second degree; (3) although nothing then due such contractor. 1. Under sec. 10, ch. 119 of 1872, as amended by sec. 1, ch. 246 of 1873, the relation of a railroad company to a person employed by its contractor to perform work in the construction of its road, is that of a guarantor (upon certain conditions specified in the statute) of payment for such work by such contractor (Streubel v. Railway Co., 12 Wis., 67); and the employee's action against the company, as one "growing out of contract," may be brought in justice's court, for an amount not exceeding the justice's jurisdiction. R. S., ch. 120, sec. 5, subd. 1. 2. The term "contractor," in said act, includes subcontractors in the second degree, as well as those who contract directly with the company. 3. As the statute peremptorily requires the action to be brought within fifty days after the labor is performed, it is immaterial whether at the commencement of the action there is anything yet due from the company to its contractor, or not. APPEAL from the Circuit Court for Grant County. The action was brought before a justice of the peace, pursuant to sec. 10, ch. 119, Laws of 1872, as amended by sec. 1, ch. 246, Laws of 1873, to recover for work done by the plaintiff in the construction of the defendant's railroad. The plaintiff was employed to perform such work by a subcontractor in the second degree from the defendant company, and not by the person who contracted directly with the company to construct such railroad. Notice was given to the company, and the action was commenced, within the times limited therefor in the above statutes. When the action was commenced, nothing was due from the company to any contractor or subcontractor on account of the plaintiff's work; but the price of |