#### Norman Carroll, Appellee, v. A. Goldstein, Appellant.

Gen. No. 23,643.

(Not to be reported in full.)

Abstract of the Decision.

1. Brokers, § 105 * — when property owner is hound to purchase property of another through latter's agent. Where a property owner states to a real estate agent that he will purchase certain property at a specified price which is held for sale by the latter if the latter will procure the sale of the former’s property, there is an offer in the nature of a continuing offer on such property owner’s part, and, if the offer is not previously withdrawn, the moment the agent furnishes the consideration by rendering services resulting in the sale of the owner’s property, there comes into existence a unilateral contract, executed on the agent’s part and binding the owner to purchase the property held by the agent.

2. Frauds, Statute of, § 130* — when defense of may not first he raised. Where the Statute of Frauds is not mentioned as a defense in the affidavit of merits below, it cannot be considered in the Appellate Court.

Appeal from the County Court of Cook county;, the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.

Affirmed.

Opinion filed May 15, 1918.

Statement of the Case.

Action by Norman Carroll, plaintiff, against A. Goldstein, defendant, to recover damages for a breach of a contract to purchase certain real estate. From a judgment for plaintiff for $437.50, defendant appeals.

Bernard J. Brown, for appellant.

Montgomery, Hart & Smith, for appellee.

*

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

Mr. Presiding Justice Taylor

delivered the opinion of the court.