#### Erwin & Maxwell, Appellees, v. R. F. Johnson, Appellant.

(Not to be reported in full.)

Appeal from the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1915.

Reversed and remanded.

Opinon filed October 13, 1915.

Rehearing denied December 11, 1915.

Statement of the Case.

Action "by Erwin & Maxwell, partners, plaintiffs, against R. F. Johnson, .defendant, for commissions for the sale of real estate. From a judgment for plaintiffs, defendant appeals.

"W. B. McBride, E. E. Dowell and M. J. Fitzgerald, for appellant.

*645Abstract of the Decision.

1. Evidence, § 275 * —when telegram admissible. Where the plaintiffs took the initiative in sending the defendant a telegram, held that they thereby made the telegraph company their agent, and that the telegram delivered to the defendant could be introduced in evidence as the original.

2. Contracts, § 377*—when evidence as to existence of contract admissible. In an action on a contract which one of the plaintiffs testified was verbal, where he admitted that he had received letters from the defendant to the same effect it was held that an objection to a question as to where the letters were was improperly sustained, on the ground that it was immaterial.

3. Trial, § 45*—when statement of .court improper as invading province of jury. In an action on a contract, a statement by the court that a conversation detailed by a witness did not amount to an agreement, held to invade the province of the jury.

4. Brokers, § 95*—when instruction erroneous. In an action for commissions for the sale of a tract of land where the defense was that commissions for the sale thereof were to be paid only in case a sale was made of another tract, an instruction directing a verdict for the plaintiffs and ignoring such defense, held erroneous.

John E. Hogan and James H. Smith, for appellees.

*

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

Mr. Presiding Justice Eldredge

delivered the opinion of the court.