#### Frank N. Derby, Plaintiff in Error, v. Edward J. Novak, Defendant in Error.

Gen. No. 20,596.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1914.

Reversed and remanded.

Opinion filed October 6, 1915.

*37Statement of the Case.

Suit by Frank N. Derby against Edward J. Novak to recover a real estate broker’s commission.

The defendant and a man named G-udichsen executed a written contract for the exchange of certain real estate. This contract was never consummated. The plaintiff was a broker in the transaction, and the said written contract contained the following provisions relating to commissions: “Brokerage fees- to be paid as follows, to-wit: Party of the first part (Gudichsen) to pay to Frank N. Derby two hundred ($200.00) dollars. Party of the second part (defendant in error), to pay to Frank N. Derby two hundred ($200.00) dollars.” In addition to this contract, the plaintiff also introduced evidence to the effect that he was to receive his commission from the defendant when he brought the latter and Gudichsen together in a valid, binding and enforceable contract. It is conceded that the plaintiff did bring the defendant and Gudichsen together in such a contract, but the defendant claimed on the trial that there was an oral agreement between the parties to this suit to the effect that the latter would not be entitled to any commission from the defendant until the contract between the latter and Gudichsen had been actually consummated, and some evidence, tending to prove this claim, was introduced.

The case was tried before the court without a jury, and a finding and judgment in favor of the defendant was entered, and this writ of error followed.

Arthur A. Basse, for plaintiff in error.

Daniel M. Rothschild, for defendant in error; Edward J. Novak, of counsel.

*

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

Mr. Presiding Justice Scanlan

delivered the opinion of the court.

*38Abstract of the Decision.

Brokers, § 71 * —what is not defense to action for compensation. In a suit for broker’s commissions, the fact that the broker recorded or caused to be recorded the written contract for the exchange of property, without authority from either the buyer or seller so to do, would not alone bar the broker’s right to recover if he was otherwise entitled thereto.