#### Madler, Respondent, vs. Pozorski, Appellant.

*February 24*

March *14, 1905.*

*Agency to sell land: Bale by subagent: Agreement to divide profits: Inconsistent rpos itions: Evidence.*

1. Where plaintiff, having authority to offer certain, land for sale- and to submit bids therefor to the owner, agreed with defendant that if the latter should find a purchaser the profits should' be equally divided, but no exclusive agency was transferred to-defendant, it was not inconsistent with such contract for plaintiff to endeavor to make a sale to defendant’s customer.

2. Such an agreement by plaintiff was not inconsistent with his: duty to the owner of the land, if there was no fraud, deception, or unfair dealing in his relations with such owner.

3. Unfair dealing by defendant with the owner, in which plaintiff' did not participate, would not affect plaintiff’s right to recover-his share of the profits made by defendant on a sale of the land..

4. Rejection of evidence offered to impeach immaterial testimony elicited from the opposite party on cross-examination, is not. a material error.

Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.

*Affirmed.*

Plaintiff and defendant lived in Milwaukee, and were engaged in buying and selling real estate. Robert 0. Thielman,. who' owned certain property in Milwaukee, lived at Tomahawk, Wisconsin. Plaintiff at the time in question was acting as agent of Thielman for the purpose of collecting rents from this property, with authority to attend to necessary repairs- and alterations, and with the further understanding that Thielman desired to sell the property-and in case plaintiff could obtain an offer therefor it should be submitted to Thiel-man for approval. Pursuant to this understanding plaintiff had placed signs upon the property bearing the words “For Sale” and his name and address. He. had also, prior to Julv 15, 1903, the time when defendant first appeared upon the-scene, advertised the property for sale in several newspapers.

*478On or about the 15th. of July, 1903, defendant went to plaintiff’s office and said lie thought he could help plaintiff sell the Thielman *property;*and it was agreed verbally that if defendant found a purchaser the profits would be divided between plaintiff and defendant. Defendant at the same time asked permission to remove plaintiff’s signs from the property, which was granted, and the signs were afterwards removed. About a week later defendant went to plaintiff’s office and told plaintiff he had sold the property for $7,500, and plaintiff said he did not think Thielman would take any such figure as that for it. Defendant requested plaintiff to see Thielman in relation tb this offer, which plaintiff agreed to do; but owing to Thielman’s absence and illness plaintiff had no communication whatsoever with him for about three weeks, when he wrote Thielman, stating that he thought he had a purchaser for the property and asking for the lowest figure he would accept. The same day he received a letter from Thiel-man stating that the property had been sold to defendant. This was the first intimation plaintiff had of the sale and of the fact that defendant had any dealings whatever direct with Thielman. On the same day, August 7, 1903, plaintiff wrote to Thielman, stating: “I had expected that you would advise me before accepting any proposition from any one, but if you made a good deal all well and good.” A few days later Thiel-man went to plaintiff’s office in Milwaukee with defendant, where the deal was closed. As the papers were about to pass, plaintiff called Thielman’s attention to the fact that he had expended $75 or $80 for repairs upon plumbing in the property and requested payment. Defendant had the deed run to his wife, with $1 consideration; and on the following day Mrs. Pozorski conveyed the property to one Warzala, the purchaser, for $1.

This action was brought to recover $425 and interest from August 21, 1903 — one half of $850, profits alleged to have been realized by defendant on the sale to Warzala. The ac*479tion was tried before the court and a jury, and a verdict of $438.50 found for plaintiff. Motion for new trial denied, judgment on the verdict, and appeal.

J. *0. Officer,*attorney, and *J oseph B.*Doe, of counsel, for the appellant.

Eor the respondent there was a brief by Quarles, *Spence £ Quarles,*and oral argument by *William 0. Quarles.*

KeewiN, J.

1. It is claimed by counsel for appellant that the court erred in refusing to admit testimony as to plaintiff’s attempt to get hold of defendant’s customer. The contract set up in the complaint was that the defendant should have the right to offer the property for sale and make a sale of the same, and that the profits should be equally divided, but it does not appear that the exclusive agency was transferred to defendant. The evidence offered tended to show that plaintiff was endeavoring to make a sale, and this was not inconsistent with his contract with defendant. Therefore exclusion of. such evidence was not reversible error. It appears that evidence was offered by defendant for the purpose of impeaching the testimony of plaintiff and one Kern, who testified on cross-examination to the effect that they did not solicit defendant’s customer. The testimony as to whether or not they did so solicit being immaterial, evidence to impeach it was likewise immaterial, and the exclusion of it not prejudicial error.

2. Under the second and fourth assignments of error, to the effect that the court erred in denying defendant’s motions for the direction of a verdict, to change the verdict, and for judgment, and for a new trial, and in granting plaintiff’s motion for judgment, it is contended that plaintiff could not act as the agent of, and receive pay from, Thielman and defendant; but it does not appear that plaintiff’s relations with Thielman were in any way inconsistent with his contract with defendant. Plaintiff was endeavoring to obtain a bid for the property for Thielman, and agreed with defendant that if he *480should obtain an acceptable offer plaintiff would divide profits-with him on the sale. There is no evidence whatever of any attempt on the part of plaintiff to taire advantage of his principal, or conceal from him any material fact concerning the sale. On the contrary, it appears that he was at all times acting in the interest of his principal in the proposed sale. "Whether defendant was guilty of unfair dealing with Thiel-man can in no manner affect plaintiff, if he was not a party to it. It not appearing that plaintiff was guilty of any fraud, deception, or unfair dealing in his relations with Thielman, it is unnecessary to consider the effect of such conduct upon the plaintiff’s right to recover.

3. Appellant further assigns as error that the question of fraud and deception on the part of the agents against their principal was ignored. From the view we have taken of the case it does not appear to us that there was any question of fraud to submit to the jury.

*By the Court.*— The judgment of the court below is affirmed.