#### The Standard Brewery, Plaintiff in Error, v. John M. Sweeney, Defendant in Error.

Gen. No. 18,620.

(Not to be reported in full.)

Abstract of the Decision.

1. Witnesses, § 144 * —when party incompetent as to conversations with deceased agent. A corporation is a "party” within Hurd’s R. S. ch. 51, sec. 4, J. & A. V 5521, rendering a party incompetent as to conversations with an agent of the adverse party, *431since deceased, unless held in the presence of surviving agents of such adverse party; and in an action by it defendant is incompetent as to conversations held with its agent, since deceased.

*430Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1912.

Reversed and remanded.

Opinion filed March 11, 1914.

Statement of the Case.

Action by The Standard Brewery, a corporation, against John M. Sweeney to recover for beer sold to defendant. The latter admitted a portion of the indebtedness and pleaded a set-off for commissions for securing new customers for plaintiff under an agreement with its agent. From a judgment for defendant for $536.50 on his set-off, plaintiff brings error.

Baker & Holder, for plaintiff in error; G-. Raymond Collins, of counsel.

Gallagher & Messner, for defendant in error.

*

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

*

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

Mr. Justice Baume

delivered the opinion of the court.

*4312. Set-ore and recoupment, § 10 * -—when elaim for commissions proper subject for set-off. In an action by a brewing company to recover for beer sold defendant, the latter’s claim to commissions under an agreement with plaintiff by which he was to receive a fixed commission for securing new customers the amount of such commissions to depend upon the daily consumption of beer by such new customers, is a proper subject of set-off, and is none the less liquidated because requiring extrinsic evidence that such new customers had sold the requisite number of barrels of beer.