{
  "id": 2866003,
  "name": "William M. Elliott, Appellee, v. Herman Maves, Appellant",
  "name_abbreviation": "Elliott v. Maves",
  "decision_date": "1915-12-01",
  "docket_number": "",
  "first_page": "605",
  "last_page": "608",
  "citations": [
    {
      "type": "official",
      "cite": "196 Ill. App. 605"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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    "ocr_confidence": 0.585,
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    "simhash": "1:de0a6a90fa18c3d1",
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  "last_updated": "2023-07-14T15:31:56.876051+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "William M. Elliott, Appellee, v. Herman Maves, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Higbee\ndelivered the opinion of the court.\n4. Instructions, \u00a7 46 \u2014when instruction does not invade province of jury. An instruction that the jury \u201cmay\u201d find for a party to an action under certain conditions does not make it mandatory on the jury so to find under such conditions.\n5. Instructions, \u00a7 162 \u2014when modification by insertion of word \u201cmay\u201d instead of \u201cshould\u201d erroneous. In an action to recover a broker\u2019s commission for procuring the exchange of property, where instructions requested by defendant, to the effect that under certain conditions the jury \u201cshould\u201d find in his favor, were modified by the court by substituting the word \"may\u201d for the word \"should,\u201d instructions held correct as requested, the words \u201cshould\u201d and \u201cmay\u201d not having the same meaning as used in the instructions requested.\n6. Words and phrases\u2014\u201cshould\u201d and \u201cmay.\u201d In some connections the words \u201cshould\u201d and \u201cmay\u201d have substantially the same meaning.\n7. Appeal and error, \u00a7 1565 \u2014when modification of instruction by substituting word \u201cmay\u201d for \u201cshould\u201d not prejudicial error. In an action to recover a broker\u2019s commission for procuring a contract to be made whereby defendant traded his store building and stock. of goods for a tract of land, where instructions requested by defendant that the jury \u201cshould\u201d find in his favor under certain named conditions were modified by the court by substituting the word \u201cmay\u201d for the word \u201cshould\u201d as used in the requested instructions, held that the modification was not reversible error, although erroneous as not making it mandatory on the jury to find if they found the conditions named to exist, it appearing that the case was not close on the facts, and that the jury were not misled by the error.\n8. Appeal and error, \u00a7 1538 \u2014when instruction omitting essential element not prejudicially erroneous. In an action to recover a broker\u2019s commission for procuring the exchange of property, an instructions state the necessity of such a contract to entitle plain-would be entitled to a verdict, although erroneous as omitting the element of whether there was a contract for commissions between plaintiff and defendant, is not prejudicially erroneous where other instructions state the necessity of such a contract to entitle plaintiff to recover, and where the case is tried on the theory that such contract was essential to recovery.",
        "type": "majority",
        "author": "Mr. Presiding Justice Higbee"
      }
    ],
    "attorneys": [
      "S. E. Quindry, for appellant.",
      "Allen E. Walker and P. C. Walters, for appellee."
    ],
    "corrections": "",
    "head_matter": "William M. Elliott, Appellee, v. Herman Maves, Appellant.\n(Not to be reported in full.)\nAppeal from the Circuit Court of Edwards county; the Hon. William H. Green, Judge, presiding.\nHeard in this court at the March term, 1915.\nAffirmed.\nOpinion filed December 1, 1915.\nStatement of the Case.\nAction by William M. Elliott, plaintiff, against Herman Haves, defendant, in the Circuit Court of Edwards county, to recover a broker\u2019s commission for bringing about a contract between defendant and one Naylor, whereby defendant traded his store building and stock of goods for sixty-five acres of land. From a judgment for plaintiff after trial by jury, defendant appeals.\nThe proofs showed that defendant h^d a store at Browns, Hlinois, and that plaintiff was in the real estate business at Albion, Illinois. Sometime in February following, defendant went to Albion, where he met plaintiff, who testified that at that time defendant asked him to try to effect a trade with Naylor, who had visited the property with Elbert Epler. Plaintiff testified that Epler was induced by him to take Naylor to see the property. Defendant denied that he had the conversation with plaintiff at Albion, but it appeared that immediately after it is claimed to have taken place, plaintiff went with Naylor to an attorney\u2019s office and then went out and got defendant and Epler and returned with them to the office; that the terms of the trade were then agreed upon and the attorney instructed to draw up an agreement, which was done, and that while the contract was being drawn, an alteration was made in it for defendant\u2019s benefit at the suggestion of plaintiff and the contract was then signed. In regard to the contract between defendant and plaintiff concerning the agency for the sale of the land, there was some conflict in the testimony. Plaintiff testified that he contracted with defendant to act as his agent in selling the property and was to receive for his services a commission of two and a half per cent, of the selling or trading price. Defendant testified that his statement to plaintiff was \u201cthe party that brings me a deal gets a commission but I reserve the right to make the deal myself provided I can,\u201d and claimed to have made the deal himself. A witness, Lovellette, who was present at the time of the making of the oral contract between defendant and plaintiff, corroborated the plaintiff\u2019s testimony.\nThe court modified the following instructions by inserting the word \u201cmay\u201d instead of the word \u201cshould\u201d therein:\nNo. 1. \u201cThe jury are instructed that if, after considering all the evidence in the case together, you believe that the evidence is equally balanced on both sides, then you may find your verdict for the defendant. \u2019 \u2019\nNo. 2. \u201cThe Court instructs the jury that if you believe from the evidence that Charles Naylor was not induced by the plaintiff to purchase or trade for the property in question by the efforts of the plaintiff, then the plaintiff is not entitled to his commission and you may find your verdict for the defendant.\u201d\nNo. 4. \u201cThe Court instructs the jury that unless you believe from a preponderance or greater weight of the evidence in this case that the plaintiff contracted with the defendant to procure a purchase or trade for the property in question, and while acting under said contract procured a purchaser or trader willing and able and ready to purchase or trade for said property, that you may find for the defendant. \u2019 \u2019\nNo. 5. \u201cYou are further instructed that before the plaintiff is entitled to recover in this case he must prove by a preponderance or greater weight of the evidence that the defendant employed him to procure a purchase or trade for th,e property in question, and that the plaintiff in pursuance of said employment found a person and sent him to the defendant, and that said person either purchased or traded for said property, or was willing, ready and able to purchase or trade for said property according to the terms under which the plaintiff was employed to obtain, and unless you so believe from the greater weight of the evidence then you may find for the defendant.\u201d\nAbstract of the Decision.\n1. Principal and agent, \u00a7 8 \u2014when evidence sufficient to establish agency to exchange land. In an action to recover a broker\u2019s commission for procuring a contract between defendant and another whereby defendant traded his store building and stock of goods for a tract of land, where the evidence was conflicting as to whether defendant made a contract of agency with plaintiff to bring about such exchange, but where plaintiff\u2019s testimony was corroborated by that of another witness, evidence held sufficient to sustain a finding that such a contract was made.\n2. Principal and agent, \u00a7 83 \u2014when evidence sufficient to establish that brolcer was procuring cause of sale. In an action to recover a broker\u2019s commission for procuring a contract whereby defendant exchanged his store building and stock of goods for a tract of land owned by a certain person, where it appeared that plaintiff went with such person to the office of an attorney, where the contract was made after plaintiff had brought defendant to the same office, evidence held to sustain a finding that plaintiff was instrumental in bringing about the exchange.\n3. Principal and agent, \u00a7 69 \u2014when agent entitled to recover commissions. In an action to recover a broker\u2019s commission for procuring the exchange of property, where it appeared that defendant requested plaintiff to try to effect such exchange, and where it appeared that plaintiff was instrumental in bringing about such exchange, a verdict for plaintiff for the amount of the commission agreed on held proper.\nS. E. Quindry, for appellant.\nAllen E. Walker and P. C. Walters, for appellee.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0605-01",
  "first_page_order": 653,
  "last_page_order": 656
}