#### G. H. Carl Jahn v. John T. Kelly.

1. Agency—What Constitutes Burden of Proof.—The burden of showing the existence of an agency is upon the party who alleges it.

Assumpsit, for a breach of contract. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1895.

Affirmed.

Opinion filed May 16, 1895.

Statement Of the Case.

This was an action brought to recover damages for breach of a contract for the conveyance of certain real estate. Defendant filed a plea of the general issue and a plea of the statute of frauds. Upon the trial, after plaintiff’s evidence was in, the court excluded the evidence and instructed the jury to bring in a verdict for the defendant.

The transaction upon which appellant’s claim is based is substantially as follows:

About the middle of the year 1899, B. A. Ulrich & Sons, a *571firm of real estate brokers, addressed a letter to the appellee, asking whether the real estate in question owned by him was for sale, and if so, upon what price and conditions he would sell it.

In answer, they received by mail a postal card describing the property by lot and block number, and giving the price as $4,000, terms, one-third cash, balance one and two years.

On July 26, 1890, Ulrich & Sons addressed another letter to appellee in the following words:

“ Dear Sir : Please let me know what is the lowest price you will accept for your property, No. 4929 State street.

Respectfully yours,

B. A. Ulrich & Sons.”

Upon this letter the appellee wrote the following words:

“ $4,200, on time; $1,000, cash; 1 and 2, or 1,2 and 3 years, or $4,100 cash is the lowest price I will take.

Tours respectfully,

John T. Kelly.”

This letter with Kelly’s indorsement on it was mailed to Ulrich & Sons, who then proceeded to find a customer for the property.

It was advertised by them as being for sale, and thereafter an agreement for a deed was drawn, which was signed by B. A. Ulrich & Sons, as agents for appellee, and by appellant in person.

G-oldzier & Rodgers, attorneys for appellant.

Sidney Smith and Austin A. Canavan, attorneys for appellee.

Mr. Presiding Justice Waterman

delivered the opinion of the Court.

There is no evidence showing that Ulrich & Sons had any authority to make for appellee an agreement to sell this dr any other property.

They ivrote to appellee asking him what he would accept *572for certain property. He replied that he would take $4,200. If Ulrich & Sons had replied that they would take it upon the terms he gave, it might be that a contract to sell to them would thus have been made; but there was in his reply no authority to them to act as his agents or sell to some one else. He may have been willing to sell to them on time, but not to appellee. The judgment of the Circuit Court is affirmed.