#### Clark W. Hawley, Appellee, v. E. O. McCormick, Appellant.

Gen. No. 19,206.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1913.

Reversed and remanded.

Opinion filed April 21, 1914.

Statement of the Case.

Action by Clark W. Hawley against E. O. McCormick on an oral contract alleged to have been made by the plaintiff with the defendant wherein, as alleged, defendant agreed to pay or canse to be paid to the plaintiff the purchase price of certain lands bought by the plaintiff from a Mr. McDoel if plaintiff became dissatisfied with his contract. From a judgment in favor of plaintiff, defendant appeals.

George G. King, for appellant.

Cheney & Evans, for appellee.

*

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

Mr. Justice Clark

delivered the opinion of the court.

*59Abstract of the Decision.

1. Appeal and error, § 1468—when error in admission of evidence prejudicial error. In an action on an oral contract wherein it was alleged that defendant agreed to pay or cause to he paid to the plaintiff the purchase price of certain lands bought by plaintiff from another if plaintiff should become dissatisfied with his contract, admission of evidence relating to quality of the land held prejudicial error, where the evidence as to whether the agreement was made is equally balanced.

2. Appeal and error, § 1691 * —when error in admission of evidence not waived. Error in the admission of testimony on behalf of plaintiff held not waived by defendant offering evidence in rebuttal and cross-examining plaintiff’s witnesses.