#### C. V. O’Connor, Appellee, v. P. R. Kennedy, Appellant.

Gen. No. 5,853.

(Not to be reported in full.)

Appeal from the Circuit Court of Boone county; the Hon. Chabres H. Donnerly, Judge, presiding.

Heard in this court at the October *278term, 1913.

Reversed and remanded.

Opinion filed April 15, 1914.

Statement of the Case.

Action by C. Y. 0 ’Connor against P. B. Kennedy to recover commission for selling a farm. It appeared that defendant sold a farm to a certain person and the plaintiff had some connection with the negotiations between defendant and the purchaser. The plaintiff claimed that he secured the purchaser and that defendant promised him a commission. From a judgment entered, on a verdict in favor of plaintiff for $608.54, defendant appeals.

Charles W. Ferguson and James M. Huff, for appellant.

William L. Pierce and Alexander J. Strom, for appellee.

Abstract of the Decision. 1. Brokers, § 27 * —right of person not a real estate agent to commissions. The fact that a person is not a real estate agent but engaged in other business does not affect his right to recover a commission for the sale of a farm, if he at the instance of the owner procured a purchaser. 2. Brokers, § 84 * —admissibility of evidence. In an action for commissions on the sale of a farm, admission in evidence of attempts by the defendant to sell the farm through other agents and of prices named by him and commissions offered, held prejudicial where it so appeared that the sale in question was a good one and more advantageous than would have been a sale under his former proposals; and the fact that defendant’s counsel in his opening statement to the jury and the plaintiff as a witness referred to the employment of other agents, held not to warrant admission of the evidence. 3. Instructions, § 89 * —when ignoring number of witnesses in determining preponderance of evidence not prejudicial. The giving of an instruction: “That the fact that the number of witnesses testifying on one side is larger than the number testifying on the other side, does not necessarily, alone determine that the preponderance of *279the evidence is on the side for which the larger number testified. In order to determine that question, the jury must be influenced by and take into consideration the appearance and conduct of the witnesses while testifying; their apparent intelligence, or lack of it; their opportunity of knowing or seeing the fact, or subject concerning which they have testified, or the absence of such opportunity; their interest or absence of interest in the result of the case, and from all these facts as shown by the evidence, the jury must decide upon which side is the preponderance,” held not reversible error for improperly excluding the factor of the number of witnesses.

*

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

*278Mr. Justice Carnes

delivered the opinion of the court.