#### Vail Crosier, Appellee, v. Arthur Crosier, Appellant.

(Not to he reported in full.)

Appeal from the Circuit Court of Schuyler county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1916. Certiorari denied by Supreme Court (making opinion final).

Affirmed.

Opinion filed June 10, 1916.

Statement of the Case.

Action in assumpsit by Vail Crosier, plaintiff, against Arthur Crosier, defendant, on a contract alleged to have been signed by the parties. From a judgment for plaintiff, defendant appeals.

*407Abstract of the Decision.

1. Contracts, § 389 * —when existence of question for jury. In an action on a contract, copies of which, after being signed by the parties, were handed to the plaintiff and defendant by the attorney who drew it, held that the question whether it was intended by the parties that the contract should take effect on such delivery was for the jury.

2. Contracts, § 372*—when burden of proving execution of is on plaintiff. Where, in an action on a contract, the defendant filed a verified general issue, held that the burden of proving the execution of the instrument by a preponderance of evidence was on the plaintiff.

3. Contracts—what constitutes execution of. The execution of an instrument includes the signing and delivery of it with the intention that it shall take effect.

4. Appeal and error, § 1247*—when remarks of counsel may not be complained of. Counsel may not complain of remarks to the jury by opposing counsel' which are provoked by his own act and based upon evidence introduced by him, though they have no relation to the matters in issue.

5. Contracts, § 393*—when instruction in action on contract not misleading. In an action on a contract, an instruction that the plaintiff could recover if the jury believed from a preponderance of the evidence that the plaintiff and defendant entered into the contract sued upon, etc., held not misleading where other instructions informed the jury that, to be binding, the contract must have been signed and delivered with the intent of the parties that it should take effect.

B. O. Willard, for appellant.

D. L. Mourning and J. M. Boring, for appellee.

*

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

Mr. Presiding Justice.Thompson

delivered the opinion of the court.