#### John Schick, Appellant, v. Otto C. Smith, Appellee.

Gen. No. 5,923.

I. Vendor and purchaser, § 317 * —when verdict disallowing recovery of purchase money sustained hy the evidence. WTiere, in an action for a balance of the purchase price claimed to be due for land sold by plaintiff to defendant and a certain sum alleged to be due for some hay, the defense was that defendant had paid the full amount of the purchase price agreed on for the land and that plaintiff had agreed to board with defendant for the value of the *638hay, but had quit boarding without cause, held that a verdict for defendant was sustained by a preponderance of the evidence.

2. Appeal and errob, § 1535*—when erroneous instruction as to ■preponderance of evidence harmless. Where an instruction was given, advising the jury that if plaintiff did not in the first instance prove his case by a preponderance of the evidence, they should find for the defendant, held that though the instruction was erroneous as depriving plaintiff of the benefit of his rebuttal evidence, and of any evidence offered by defendant which tended to establish plaintiff’s case, yet the giving of the same did not harm plaintiff where no such evidence was offered.

Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the April term, 1914.

Affirmed.

Opinion filed July 31, 1914.

George L. Hoffman and Henry Mackay, for appellant.

Ralph E. Eaton, for appellee.

*

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

Mr. Justice Whitney

delivered the opinion of the court.

John Schick, appellant, owned a farm and Otto C. Smith, appellee, was his tenant. Appellant was old, his wife was dead and he lived alone until appellee came on his farm as a tenant. Appellant hoarded with appellee about two months and then the proposition was made that appellee buy the farm. Appellant and appellee had a verbal arrangement at the house and they went to a real estate agent to have the deed drawn. The real estate agent asked what consideration should be inserted in the deed, and was told by appellant $125 an acre and it was figured there was one hundred" and thirteen acres in the farm. A deed was drawn stating the consideration to be $14,125. Before it was drawn up one or the other of the parties, either appellant or appellee, asked the question, “if it was necessary that the true consideration be stated, ’ ’ and the real estate agent said, No. The deed was *639signed, acknowledged and delivered and a note for $9,000 was drawn np and signed by appellee, payable to appellant which was not secured by mortgage, but was subsequently paid. The parties then went to a bank where appellee paid appellant $3,000, and a receipt was drawn up for $5,125, and it bears a signature which appellant denies is his, but we are satisfied the preponderance of the proof shows it to be his genuine signature. The receipt was delivered to appellee. Appellant boarded for awhile with appellee and then quit boarding with him and he now brings this suit to recover $2,125, alleged balance of the purchase money for the land and $200 for some hay which he had on the farm and which appellee had used. Appellee testified-appellant quit boarding at his house voluntarily and without cause, except that he got angry and swore at the women folks. Appellee also testified appellant was at liberty to board at his house until he had boarded there for two years.

Upon reading the evidence it seems clear to us there is a preponderance against appellant, and that the preponderance of the evidence is that appellant sold his farm to appellee for $12,000, which amount has been paid in full,"and that he sold the hay and was to board out the amount of the hay. It also appears he never demanded the privilege of going back to his boarding house, or to board out the balance of the hay, and that he had no cause for leaving.

It is claimed there is error in one instruction given for appellee. Under that instruction the jury were advised that if the plaintiff in the suit did not in the first instance prove his case by a preponderance of the evidence, the jury were directed to find a verdict for the defendant. If appellant had offered rebuttal evidence to establish his case this would deprive him of the benefit of it, but he offered no rebuttal. If there was evidence offered by the defendant in the case which tended to establish the plaintiff’s case, the plaintiff was entitled to the benefit of that, and- this *640instruction would deprive him of the benefit of it, but there was no such evidence. The error in the instruction did not harm appellant, and we see no cause for reversal by reason of the giving of that instruction. Seeing no reversible error in the record, we affirm the judgment of the court below.

Judgment affirmed.