#### Mark H. Hubbell et al., Appellees, v. Edward C. Heidrich, Appellant.

Gen. No. 4,970.

Vebdict—when set aside as against the weight of the evidence. A verdict will be set aside on review as against the weight of the evidence where clearly and manifestly so.

Action commenced before justice of the peace. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding.

Heard in this court at the April term, 1908.

Reversed and remanded.

Opinion filed August 10, 1908.

Jay T. Hunter, for appellant.

Dailey & Miller, for appellees.

Mr. Justice Dibell

delivered the opinion of the court.

Appellant sold and conveyed a lot in the city of Peoria for $2,250 to L. P. Cook. Hubbell & Newsarn, partners in the real estate business, the appellees, sued appellant for commissions upon said sale and had a judgment before a justice and again in the Circuit Court, from which latter judgment defendant below appeals.

There is a sharp dispute as to the facts. We have studied the evidence in the record. Except as to the fact that appellant conveyed the premises to Cook and received the purchase price, Newsarn was the only witness for appellees. According to his testimony, he drove Cook and wife about the city and showed them various lots, and among others appellant’s lot, and told them the price and urged them to buy it and recommended its merits, and afterwards called up appellant by telephone and told him that Cook was looking at the lot and would probably buy it; and appellant urged Newsarn not to let Cook get away from him. *405This is all that Mewsam claims appellees did to effect a sale. Appellant admits that he had authorized Mewsam to try to sell the lot, but he denies that Mewsam ever telephoned him about Cook, or that he knew till he was sued that Mewsam had seen Cook or had any connections with his purchase. Mr. and Mrs. Cook testified that Mewsam did drive them about the city and show them certain lots before they went to the agent from whom they bought this lot, but each testified that they had no recollection that News am showed them appellant’s lot, and they are sure that if he did. drive by it and speak of it to them they did not get out and go upon it. They also testified that nothing occurred during that drive to cause them to think of buying appellant’s lot. Callender & Causey, real estate agents, also had this lot for sale as agents for appellant. Crimson was in their employ. A week or so after Mewsam took Mr. and Mrs. Cook about the city they went to the office of Callender & Causey, and Crimson drove them about the city and showed this lot. They got out of the buggy and went upon the lot and were pleased with it. Still later Mr. and Mrs. Cook visited the lot alone and decided to buy it. Cook went to the office of Callender & Causey and there completed a bargain with Crimson, who drew the necessary deed and went to appellant and had it executed, and after-wards exchanged the papers with Cook. Bach side found flaws in the testimony produced on the other side. We have considered all these criticisms. The proof is that appellant did not call the name of Cook as a possible purchaser to the attention of Callender & Causey or of Crimson. There is in our judgment a clear preponderance of the evidence that Mewsam did not bring the purchaser and the seller together, and did nothing which brought about the sale, and therefore his firm is not entitled to commission. While in a case of conflicting testimony much weight must be given to the verdict of the jury and its approval by the trial judge, both of whom saw the witnesses, yet when, after giv*406ing due weight to these considerations, we still find that the judgment is unsupported by the proof, it becomes our duty to award a new trial. C. & A. R. R. Co. v. Heinrich, 157 Ill. 388; I. C. R. R. Co. v. Hecker, 129 Ill. App. 375, and cases there cited.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.