Hoffman v. Boomer, 40 Ill. App. 231 (1891)

March 13, 1891 · Illinois Appellate Court

40 Ill. App. 231

George W. Hoffman v. John Boomer.

Sales—Real Property—Commission—Recovery of—Evidence—Instructions.

In an action to recover commissions claimed to be due upon a sale of real estate, this court reverses the judgment of the trial court on account of the giving of an erroneous instruction on behalf of the plaintiff,

[Opinion filed March 13, 1891.]

Appeal from the Circuit Court of Cook County; the Hon. S. P. McConnell, Judge, presiding.

Mr. W. S. Coy, for appellant.

Messrs. Bayley & Waldo, for appellee.

Waterman, J.

This was an action to recover commissions claimed to be due upon a sale of real estate.

Among the instructions given was the following:

“ The court instructs you as a matter of law, that if you shall find from the evidence in this case that the defendant authorized the plaintiff herein to sell the property in question at a certain figure and upon certain terms, and if it shall appear from the evidence that the defendant found a purchaser for said real estate at the price and upon the terms named by the defendant, then the plaintiff has performed his part of the contract, and is entitled to his commissions on said sale.”

It is conceded that this is not the law; the instruction is probably the result of a clerical error.

The following given at the instance of the defendant is a correct statement of the law :

“ The court instructs the jury that if they believe from the evidence that the defendant gave the plaintiff authority only to sell the land in question and to report to the defendant the sale by a certain hour of a certain day named by the said defendant to the plaintiff, then the plaintiff can not recover in this case unless the jury believe from the evidence that the plaintiff did report said sale to the defendant by the certain hour of that day named.”

For the error mentioned, the judgment of the court below must be reversed, and the cause remanded.

Reversed and remanded.