Wagler v. Norris, 205 Ill. App. 69 (1917)

April 16, 1917 · Illinois Appellate Court

205 Ill. App. 69

Eli R. Wagler and Noah Wagler, trading as Wagler Brothers, Appellants, v. James A. Norris, Appellee.

(Not to be reported in full.)

Abstract of the Decision.

1. Bbokbbs, § 88 ^* —when evidence sufficient to sustain verdict ■for defendant in action for commissions. Evidence held sufficient to sustain a verdict for the defendant, in an action to recover commissions claimed on a sale of defendant’s real estate.

2. Tbial, § 78*—when evidence is not proper in rebuttal. In an action to recover commissions claimed on a sale of real estate, where one of the plaintiffs testified in chief to a certain conversation between him and defendant, and the defendant testified that he had not met the witness at the time and place testified to by the latter, the testimony of another witness offered by the plaintiffs in rebuttal that he saw the former witness and defendant at said time and place, held to be competent in chief but properly excluded in rebuttal.

Appeal from the Circuit Court of Tazewell county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed April 16, 1917.

Statement of the Case.

Action by Eli R. Wagler and Noah Wagler, trading as Wagler Brothers, plaintiffs, against James A. Norris, defendant, to recover commissions claimed to have been earned by the plaintiffs for selling certain real estate for defendant. From a judgment for defendant, plaintiffs appeal.

Wilkins & Brecher, for appellants.

William A. Potts, for appellee.

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

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

Mr. Justice Graves

delivered the opinion of the court.

3. Appeal and error, § 1565 ^* —when modification of instruction not prejudicial error. In an action to recover commissions claimed on a sale of real estate, modification of an instruction offered by plaintiffs by adding the words “and sale” after the word “purchaser” in the clause “and that their services were instrumental in securing a purchaser and sale,” held to be insignificant and not prejudicial.

4. Appeal and error, § 1526*—when instructions not reversibly erroneous. Instructions, even if wrong, held not reversibly erroneous where the verdict and judgment thoroughly comported with the manifest justice of the case.