Schulze v. Parrish, 195 Ill. App. 348 (1915)

Nov. 15, 1915 · Illinois Appellate Court · Gen. No. 21,052

195 Ill. App. 348

T. W. Schulze, trading as T. W. Schulze & Company, Defendant in Error, v. J. S. Parrish, Plaintiff in Error.

Gen. No. 21,052.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.

Heard in this court at the March term, 1915.

Reversed and remanded.

Opinion filed November 15, 1915.

Statement of the Case.

Action by T. W. Schulze, trading as T. W. Schulze & Company, plaintiff, against J. S. Parrish, defendant, in the Municipal Court of Chicago, to recover broker’s commissions for negotiating an exchange of real estate of defendant for other real estate owned by a third person. To reverse a judgment for plaintiff for $92.50, defendant prosecutes this writ of error.

Martin L. Wilborn, for plaintiff in error; John W. Sutton, of counsel.

No appearance for defendant in error.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

Brokers, § 71 ^* —when judgment for plaintiff improper. In an action to recover broker’s commissions for negotiating an exchange of real estate, where the affidavit of claim is for “the usual, ordinary and customary brokerage commission,” but where the evidence for plaintiff showed that there was a special agreement as to the rate of commission to be paid plaintiff by defendant, held error to stop defendant in his testimony and to refuse to allow him to continue or to hear his other witnesses and to announce a finding and judgment, where defendant testified that the agreement was that defendant should not be liable for plaintiff’s commissions but should obtain them from the other party to the exchange.