#### J. F. Hessling, Appellant, v. Henry Frey, Sr., Appellee.

Gen. No. 5,798.

(Not to be reported in full.)

Appeal from the City Court of Sterling; the Hon. Henry C. Ward, Judge, presiding. Heard in this court at the April term, 1913.

Reversed and remanded.

Opinion filed August 2, 1913.

Statement of the Case.

Action by J. F. Hessling against Henry Frey, Sr., to recover commissions for procuring a purchaser for the sale of real estate of the defendant. From a judgment in favor of defendant, plaintiff appeals.

Brooks & Brooks and N. G. Van Sant, for appellant.

Carl E. Sheldon and A. A. Wolfersperger, for appellee.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

Mr. Presiding Justice Whitney

delivered the opinion of the court.

*548Abstract of the Decision.

1. Brokers, § 43 * —when entitled to commissions. An agent employed by owner to sell real estate is entitled to commissions when he is instrumental in bringing the owner and buyer together and the owner concludes the sale at a less price than that at which it is listed with the agent.

2. Brokers, § 38*—when agent is procuring cause of sale. Agent is entitled to his commission when the purchaser was induced to apply to the owner through the instrumentality of the agent or through or by means employed by the agent.

3. Brokers, § 97*—when instruction on right to commissions improper. Instruction to jury to find for owner unless they believe from the evidence that the agent had established by a preponderance of the evidence that agent named terms to the purcnaser who was ready, willing and able to accept, held improper.

4. Brokers, § 98*—when instruction erroneous as not applicable to the evidence. Instruction directing a verdict for owner unless the jury believe from the evidence that agent was prevented from bringing about a consummation of the sale by fraud, etc., held bad when no attempt is made to apply it to the evidence.