#### Henry Forbes, Appellee, v. Celeste A. Davis, Appellant.

Gen. No. 6,159.

(Not to tie reported in full.)

Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1915.

Reversed and remanded.

Opinion filed April 14, 1916.

Statement of the Case.

Action by Henry Forbes, plaintiff, against Celeste A. Davis, defendant, to recover real estate commissions. From a judgment for plaintiff, defendant appeals.

There was a sharp conflict in the evidence as to the terms of the contract upon which the claim for commission was based. Plaintiff claimed that defendant agreed to pay him a commission of $1 per acre for finding her a purchaser, and that she fixed the price of the farm to be sold at $130 per acre, while defendant claimed that she agreed to pay the commission named, only upon condition that the purchaser whom plaintiff should find for her would pay the price of $130 per acre, and that plaintiff was not to have a commission unless $130 per acre was paid by such purchaser for the farm.

The evidence tended to show that the purchaser of the farm, to whom defendant finally sold it for $125 per acre, was procured through the instrumentality of plaintiff, that is to say, it was plaintiff who induced this purchaser to visit defendant and the farm with a view of buying it. One of defendant’s defenses, however, was that before she sold the farm to this party who finally did purchase it, plaintiff deceived her into believing that this purchaser was not one which plaintiff had procured for her, but that he had brought with him the person whom he expected to bring about the *379sale of the farm for her, and wanted her to make a contract with him in reference to the matter.

Abstract of the Decision.

1. Brokers, § 61 * —what is effect of deceit on right to recover commissions. Under a contract whereby a landowner agrees to pay an agent a certain sum per acre if he produces a purchaser and fixes the price per acre at which she will sell, the agent cannot recover his commission, though he introduced a person who finally became a purchaser at a price lower than that fixed by the owner, if, at the time, he deceived the owner by telling her that such person was not a prospective purchaser but one through whom he expected to bring about a sale, and thus induced her to sell for an amount less than she would have otherwise exacted.

2. Instructions, § 114*—when ignoring defense improper. An instruction which purports to state all the facts necessary to a recovery, and ignores a matter of defense of which there is proof, is erroneous. ,

The plaintiff denied that he made any statements to defendant to that effect, or that he told her that this purchaser “was not his man.”

Arthur H. Shay, for appellant.

F. A. Ortman and Lyle M. Shelly, for appellee.

*

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

Mr. Justice Niehaus

delivered the opinion of the court.