Kelly v. Shumway & Johnson

Appellate Court of Illinois

Kelly v. Shumway & Johnson

51 Ill. App. 634, 1893 Ill. App. LEXIS 665

DecidedOctober 28, 1893

StatusPublished

This text of 51 Ill. App. 634 (Kelly v. Shumway & Johnson) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. Shumway & Johnson, 51 Ill. App. 634, 1893 Ill. App. LEXIS 665 (Ill. Ct. App. 1893).

Pincite

Opinion

Mr. Justice Wall

delivered the opirior oe the .Court.

This is an appeal from a judgment of $100, for commissions upon the sale of real estate.

The questions of fact as to whether plaintiffs were authorized by the defendant to sell his farm, and whether they produced a buyer who was able and willing to take the property on the defendant’s terms, were found by the jury for the plaintiffs. Admitting there is considerable conflict upon material points, yet we find no such want of proof nor such preponderance against the verdict as to warrant reversal.

The objection based upon the admission of the testimony of Redfern, is, we think, not well made. The important feature of his testimony was the statement by defendant tending to show that the plaintiffs were his agents in respect to the sale of this land, and this, of course, was competent.

The conversation with plaintiffs and their action in thereupon communicating with the defendant by telephone, were merely preliminary to the interview the witness had with the defendant, and were properly shown in order to make more clear and intelligible what followed.

The objection to the third and sixth instructions must also be overruled. It is urged that the court in these instructions assumed there was an existing contract of agency.

This is a misapprehension. The statement in that respect is hypothetical and could not fairly be understood otherwise.

This view is strengthened by other portions of the charge, wherein it was laid down as a part of plaintiffs’ alleged case, that there was such agency, and that it devolved upon the plaintiffs to prove every material allegation by the greater weight of the evidence.

In the motion for new trial it was not pointed out that the court erred in the instructions, and therefore the present objection comes too late.

J\ro other points are presented in the brief. The judgment is affirmed.

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