Meyer and another vs. Hanchett.

warranted, under the circumstances, by the decision made on the former appeal. 39 Wis., 419. It was there in effect decided, that the plaintiffs could not act as the agents of the seller and purchaser without the knowledge and assent of both principals that they might undertake such mutual agency and receive commissions for their services. The law will not allow a person to assume such a double agency, or hold the inconsistent and repugnant relations which it imposes, certainly not without the full consent of both parties freely given. Cases might be cited which hold a stricter rule, and which condemn, on grounds of public policy, such double agency, even when exercised with the knowledge and consent of both principals. But it is not necessary to go that length in this case. It is sufficient here to say that the plaintiffs could not recover commissions for services rendered the defendant while they were acting for Hobart in the same transaction, unless their relations to Hobart were made known to the defendant, and he consented to their so acting. The law upon this subject is too well settled to require further comment.

But it was claimed that the evidence showed, or at least that the jury might have found, if the question had been submitted to them, that the plaintiffs did not act as agents for or in the interest of either party, but were mere middlemen to bring the parties together to enable them to make their own contract. In such a case, it is said, the law would allow them to recover commissions from both, according to the value of the services rendered to each. We do not think, however, any such inference could properly be made, upon the evidence. The plaintiff Meyer testified, in substance, that the defendant first applied to him to effect a loan upon his farm; that he failed to procure the loan, and subsequently wrote to the defendant to find out whether his farm was yet in the market for disposal. Then followed the correspondence which was put in evidence. The letters on both sides, and other evidence, clearly show that the plaintiffs were employed by the

Meyer and another vs. Hanchett.

defendant to sell or exchange his property. About this there cannot possibly be a question. Meyer says, in substance, that the plaintiffs rendered considerable services, and exerted themselves to a considerable extent, in disposing of this farm; advertised it for sale; went to expense on account of it; negotiated with a party in Boston and with Hobart in relation to it; spent a good deal of time in making the sale; and charged the ordinary rates for selling country property.

This is believed to be a fair summary of his testimony, and, when considered in connection with the other evidence, leaves no room for doubt as to the capacity in which the plaintiff's acted. It is evident that the plaintiff's well knew they were something more than mere middlemen to bring the parties together. They were in fact employed by the defendant to sell his farm or exchange it for other property; and this they seem to have fully understood. Such being their position, it was, of course, their imperative duty to do the best they could for his interest in any trade which they might make. And this brought them clearly within the rule which forbids an agent from acting for both seller and purchaser in the same transaction without fully disclosing his relations to the parties.

In conformity to the former opinion, the defendant, on the trial, was permitted to testify that in the negotiations between him and the plaintiff's they never notified him that they would seek to recover compensation for their services from both parties; and it is not pretended that the defendant had any knowledge of their relations to Hobart except such as the correspondence afforded. In his answer, the defendant states that he dealt with the plaintiffs as the agents of Hobart, and not otherwise, and that he understood and believed that they were acting for Hobart in making the trade. These allegations in the answer were overlooked by us as well as by counsel, on the other appeal. It is now claimed that they conclusively show that the defendant knew the relations of the plaintiffs

Ehlert vs. Hollander.

to Hobart at the time, and ought not now to be heard to deny it. Assume, for the argument, that these relations were known to the defendant: there certainly is not one particle of proof that he ever consented that they should act as agent for both parties, which fact should clearly appear in order to render him liable for their commissions. So, in any aspect, we think there was no error in withdrawing the case from the jury and granting the nonsuit.

By the Court. - The judgment of the circuit court is affirmed.

EHLERT VS. HOLLANDER.

Reversal of judgment.

A judgment will not be reversed upon immaterial exceptions; nor will it be reversed for insufficiency of evidence to sustain the verdict, where the bill of exceptions is not certified to contain all the evidence.

APPEAL from the Circuit Court for Milwaukee County. Action upon a promissory note. The note was given to the plaintiff for a loan of money, and was signed in the firm name, "A. Suhr & Co.," by the partner Suhr, since deceased. It is undisputed that the plaintiff loaned the money for which the note was given, either to the firm or to Suhr. The testimony of the plaintiff tends to show that the loan was to the firm; that of the defendant tends to show that the loan was to Suhr individually, and that the firm had no interest in it. The circuit judge instructed the jury that if the money was borrowed for the use of the firm, and was used by the firm, the defendant is liable on the note; otherwise he is not so liable; leaving it for the jury to determine whether the firm or Suhr was the borrower.

The jury found for the plaintiff. A motion to set aside

Green Bay & Miss. Canal Co. vs. Sup'rs of Clark County and another.

the verdict, on the ground that it was contrary to law and the evidence, was denied, and judgment entered for the plaintiff pursuant to the verdict, for the amount due on the note by its terms. The defendant appealed from the judgment.

The appeal was submitted for the appellant on the brief of James Hickcox, and argued for the respondent by Mr. F. W. Cotzhausen, with the brief of Cotzhausen, Smith, Sylvester & Scheiber.

LYON, J. A few exceptions were taken on the trial to rulings upon objections to the admission of testimony, but they are quite unimportant. Besides these, the only exception preserved in the record is to the order denying the motion for a new trial. The bill of exceptions is not certified to contain all of the testimony; and because it is not so certified, the judgment cannot be disturbed for the alleged want of sufficient evidence to support the verdict. And because there are no material exceptions, it cannot be disturbed for any alleged error in the rulings of the court. So far as we can perceive from the record before us, the motion for a new trial was properly denied. The record disclosing no error which can be reviewed by this court, we must necessarily affirm the judgment of the circuit court.

By the Court.-Judgment affirmed.

THE GREEN BAY & MISSISSIPPI CANAL COMPANY VS. THE SUPERVISORS OF CLARK COUNTY and another.

Review of taxation of costs in supreme court.

1. Where the clerk of this court, in taxing costs, has followed strictly the direction of the court in a matter on which the mind of the court expressly acted, and the thirty days' jurisdiction of the appeal after judgment, and

Green Bay & Miss. Canal Co. vs. Sup'rs of Clark County and another.

the term of judgment, have both passed, the taxation cannot be reviewed.

[2. Whether, where an error in the taxation of costs on appeal is merely that of the clerk, it may be corrected by the court after jurisdiction of the appeal has ceased, or even after the term, is not here considered.]

APPEAL from the Circuit Court for Clark County. Judgment in this cause was entered here on the 23d of October, 1877, reversing the judgment of the court below. On taxing the costs against the respondent, January 3, 1878, the clerk of this court refused to allow anything for the printed cases. On the 8th of February following, the plaintiff appealed to the court from the taxation.

Briefs on the question of taxation were filed, by Sloan, Stevens & Morris for the appellant, and by S. U. Pinney for the respondent; and there was oral argument by Mr. Stevens and Mr. Pinney.

For the appellant it was contended, that the party prevailing in this court on an appeal, whether in law or equity, has an absolute right to costs, and the court has no discretion (Laws of 1860, ch. 264, sec. 36; Tay. Stats., p. 1644, § 41, p. 1532, § 58, and p. 1299, § 23; Durkee v. Janesville, 28 Wis., 464; Paine v. Chase, 14 id., 653, 657; First Nat. B'k v. Prescott, 27 id., 616; Smith v. Wait, 39 id., 512, 514, 515; Lultgor v. Walters, 64 Barb., 417, 420; Carpentier v. Wittel, 3 Rob., 700); that the items which the clerk may tax are clearly specified in the statute (§ 41, supra); and that the direction of the court in this case, which was for a reversal "with costs," constitutes the judgment, and, in connection with the statute (§ 41, supra), constitutes the full and complete exercise of the mind of the court, and a review of the subsequent adjustment of costs by the clerk, by motion or appeal, is unaffected by the lapse of the term, or of the thirty days prescribed by section 7 of the appeal act and rule 21 of the court. 2 Barb. Ch. Pr. (2d ed.), 324, 343; Loyd v. Brewster, 5 Paige, 87; Beattie v. Qua, 15 Barb., 132; Stimson v. Huggins, 16 id., 658; Gilmartin v.