#### S. Homer Tolly, Appellant, v. The Millikin National Bank, Appellee.

(Not to be reported in full.)

Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.

Heard in this court at the April term, 1913.

Affirmed.

Opinion filed October 16, 1913.

Statement, of the Case.

Action by S. Homer Tolly against The Millikin National Bank to recover a sum claimed to be due as commissions for services of plaintiff as real estate agent in selling defendant’s real estate. From a judgment in favor of defendant, plaintiff appeals.

Jack & Whitfield, for appellant.

Hugh Crea and Hugh W. Housum, for appellee.

Mr. Justice Thompson

delivered the opinion of the court.

*387Abstract of the Decision.

1. Broker, § 90*—when evidence insufficient to entitle a real estate agent to a commission. In an action to recover a commission for the sale of defendant’s real estate, a verdict in favor of defendant held sustained hy the evidence, it appearing that plaintiff had no exclusive agency to sell the land, that defendant sold to another party after plaintiff had failed to fulfil his promise to call upon defendant to close the deal with his prospective purchaser and plaintiff’s evidence showing that he concealed from defendant the correct amount offered hy his prospective purchaser.

2. Evidence, § 366*—when question ashed of prospective purchaser in suit by real estate agent‘for a commission calls for a conclusion. In an action to recover a commission for the sale of real estate, sustaining an objection to a question put to plaintiff’s prospective purchaser whether he was ready and willing to complete the purchase on the terms he and the plaintiff talked over, held not error for the reason that the question called for a conclusion. The witness should have been asked for the facts and thereafter permitted to tell his financial condition and all attending circumstances.