#### George E. Lewis and R. M. Scanlan for use of George E. Lewis, Plaintiffs in Error, v. W. E. Rayburn, Defendant in Error.

(Not to be reported in full.)

Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1914.

Affirmed.

Opinion filed October 16, 1914.

Rehearing denied December 2, 1914.

*540Statement of the Case.

Action by George E. Lewis and R. M. Scanlan for the use of George E. Lewis against W. E. Rayburn on a promissory note for $750. There was a plea of the general issue, with an agreement that all evidence competent under any good plea which could have been pleaded should be heard at the trial. A jury being waived the case was tried by the court and defendant had judgment. To reverse the judgment, plaintiffs prosecute a writ of error.

The facts showed that the George H. Paul Company was engaged in selling Texas land and that plaintiffs were its agents and made an earnest money contract with defendant for the sale to him of one hundred and sixty acres of the land for $5,040, payable $1,680 at first payment and the balance in vendor’s lien notes. The $1,680 was paid by the defendant giving to plaintiffs his note for $750 for their commission on the sale .and a note to the George H. Paul Company for $939, due one year after the date of the contract.

The land contract contained a clause that if defendant failed to pay any part of the earnest money when due, the. George H. Paul Company had the option to declare the contract null and void and the amount paid should be forfeited as liquidated damages. Defendant paid in services as subagent the sum of $685 on the $930 note, but for failure to pay the balance therein the Company forfeited the contract. Thereafter the plaintiff brought this suit on the $750 note.

DeMange, Gillespie & DeMange, for plaintiffs in error.

Jacob P. Lindley and W. W. Whitmore, for defendant in error.

*

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

Mr. Justice Scholfield

delivered the opinion of the court,

*541Abstract of the Decision.

Brokers, § 67 * —when consideration for note given for commissions fails. Where a purchase of land of real estate agents under an earnest money contract gave his note to the agents for their commissions and also gave a note to the agents’ principal as the first payment, and under the provisions of the contract the principal forfeited the contract for failure to pay the balance due on the latter note, held that the consideration for the note given to the agents failed and that the agents could not maintain an action therein, it appearing that the agents were not entitled to a commission under their contract with their principal until a cash payment had been made and the deed delivered.