#### William L. Davis et al. v. Anders M. J. Johnson et al.

Agency—Sale of Real Estate—Recovery of Commissions—Parties— Practice Act, Sec. S3.

1. Where an action is wrongfully brought against several persons, there being no cause of action against one of them, there may be a discontinuance as to him, and the merits may be passed upon as to the others.

2. In such case it is proper to give judgment for the defendants where such step is not taken by the plaintiff.

3. A court is not bound to instruct the plaintiff in such case as to the proper procedure, nor require him to do the proper thing.

[Opinion filed June 2, 1891.]

Appeal from the Circuit Court of Cook County; the Hon. Geobge Dbiggs, Judge, presiding.

Mr. Joseph H. Fitoh, for appellants.

Messrs. Blank® & Chytbaus, for appellees.

Gaby, J.

Johnson sold some real estate, and the appellants say through their agency, entitling them to commissions. They sue in assumpsit both Johnson and his lawyer, Ohytraus, who, if he had any part or interest in the business, had no *23other than as agent or attorney for Johnson, and even as such made no engagements with, or promise to them. As they had no cause of action against Chytraus, the court, trying the case without, a jury, rightly found for the defendants below, whether they had a good case as to Johnson alone, or not. Gribbin v. Thompson, 28 Ill. 61; Felsenthal v. Durand, 86 Ill. 230.

If the appellants desired the court to pass upon the merits of their claim against Johnson they might, under Sec. 23 of the Practice Act, have discontinued as to Chytraus, but the court could not do that for them, nor require them to do it, nor was it bound to instruct them that they ought to do it.

This point has not been made in this court, but we can not reverse a judgment in a case such that if the judgment had been the other way, we must have reversed it.

Judgment affirmed.