#### Frank Lockett, Appellee, v. Charles Zimmerman, Appellant.

(Not to be reported in full.)

Appeal from the Circuit Court of Champaign county; the Hon. William' G. Cochean, Judge, presiding.

Heard in this court at the October term, 1913.

Reversed and remanded.

Opinion filed December 27, 1913.

*59Abstract of the Decision.

I. Brokers, § 88 * —when evidence insufficient to show agreement to pay member of real estate firm his share of commission. In an action brought by a member of a real estate firm in his own name to recover his share of the commissions for selling real estate belonging to defendant under a written contract between the defendant and the firm, evidence held insufficient to show a parol agreement by the defendant to pay the plairitiff individually his share of the commission.

2. Brokers, § 95 * —when instruction erroneous. In an action by a member of a real estate firm to recover his share of commissions for selling real estate belonging to defendant under a written contract between the defendant and the firm, an instruction given for plaintiff telling the jury that plaintiff is entitled to recover his commission though defendant changed his proposition with a view to dispense with plaintiff’s services, when the plaintiff received no notice of such fact, held erroneous as ignoring an alleged modification of the contract and as assuming facts.

3. Partnership, § 32 * —when member estopped to deny a copartnership. In an action brought by a member of a real estate firm in his own name to recover his share of a commission for selling real estate belonging to defendant under a written contract purporting to be executed between defendant and the plaintiff and another as a real estate firm, held that the plaintiff was estopped to deny that the contract was executed by him and such other person as copartners.

Statement of the Case.

Action by Frank Lockett against Charles Zimmerman in assumpsit by attachment proceedings, the defendant being a resident of Wisconsin, to recover a certain sum alleged to be due him as his share of the commissions for selling real estate for defendant under a contract between the defendant and the plaintiff and John D. Stayton, a real estate firm. From a judgment in favor of plaintiff for $766.66, defendant appeals.

Dobbins & Dobbins, for appellant.

H. Anderson and L. B. Saffer, for appellee.

*

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

Mr. Justice Eldredge

delivered the opinion of the court.