
    James C. King v. Francis Barnes et al.
    
      Brokers—Beal Estate—Commissions—Action to Becover.
    
    1. Where the evidence is not clear, the instructions must be accurate.
    2. In an action to recover commissions alleged to be due the plaintiffs as real estate brokers, this court reverses the judgment for the plaintiffs because of the giving of an instruction which is not based upon the evidence-
    
      [Opinion filed January 18, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. John Gibbons, for appellant.
    Mr. E. L. Barber, for appellees.
   Gary, J.

The evidence in this case was such as to entitle the appellees to argue to the jury that the appellant employed them to sell his property; that they commenced negotiations with the subsequent purchaser, and informed the appellant of that fact, giving the name of the possible or probable purchaser; that before any conclusion was reached the appellant withdrew the property from them, and afterward made the sale himself to that purchaser, as a consequence of the negotiations begun by them.

If the jury had believed the argument, appellees would have been entitled to a verdict. But, by the instruction asked by them, the case was put to the jury upon the hypothesis, of which there was no evidence, that before the property was withdrawn frbm them they had found a purchaser ready and willing to take and pay for the property upon the terms which the appellant had fixed, and that the sale was prevented by the appellant having changed his mind. The appellee Barnes, with whom the appellees say appellant conducted the business, testifies that when the property was withdrawn from them the purchaser was still undecided, and that a short time after he notified the appellant that the purchaser was ready, and then appellant raised his price.

What may be the real justice of the case is not so clear that the error in giving this instruction may be disregarded.

The judgment is reversed and the cause remanded.

Reversed and remanded.  