Phillips v. Dowhower

103 Ill. App. 50

• Court: Appellate Court of Illinois
• Decided: July 18, 1903
• Status: Published

Opinion

Mr. Justice Higbee

delivered the opinion of the court.

Appellant, a commission man in Pontiac, claims that on February 28, 1901, appellee placed in his hands a farm of 110 acres to be sold at $96 per acre; that he was given three months in which to make a sale, and was to have a commission of one dollar an acre for his services in case he succeeded; that early in April, 1901, he took a purchaser, Charles Flaeger, to appellee, who was ready and able to buy the farm at the price named; that he said to appellee, “ Mr. Dowhower, I have a buyer here; Mr. Flaeger is ready to take your farm at your price, $96 an acre;” that Mr. Flaeger said “ Fes, I will take the farm;” that appellee thereupon said, “ I took that farm out of your hands;' you can go to thunder; I am not going to sell my farm now;” that appellee further said he could attend to his own business; that he would not sell his farm and that they could not make him sell it. Phillips shortly afterward brought suit against Dowhower before a justice of the peace for the commission of one dollar an acre claimed by him and was defeated.

In the Circuit Court, where Phillips took the case by appeal, Dowhower, at the close of plaintiff’s evidence, requested the court to withdraw the evidence and instruct the jury to find the issues for the defendant. The court granted the motion, gave the instruction asked, and the jury found for the defendant.

A motion for a new trial was overruled and judgment was entered against Phillips for costs, from which he appealed.

We are of opinion that the court below erred in directing a verdict in this case. Appellant’s testimony, supported in certain respects by the testimony of the witnesses J. A. Blue, Charles , Flaeger and Henry F. Flaeger, tended to show that he was employed as a commission man by appellee; that he was to have a certain time in which to make a sale; that within the time limited he procured a purchaser who was both willing and able to buy the premises at the price named, and that appellee, without giving any sufficient reason, refused to complete the sale. Ho evidence was introduced to show a different state of facts or to contradict the testimony of the witnesses above named. Under such circumstances appellant had a right to have the cause submitted to the determination of a jury. The judgment is therefore reversed and the cause remanded for another trial.