terest, in the event of its affirmance by the Appellate Court. In the Branch Appellate Court Griffin moved to dismiss the appeal on the theory that the prayer for an appeal which was allowed was for an appeal from two separate and distinct judgments; that the appeal bond purports to perfect an appeal from a judgment in favor of the appellant and against appellee only, which was an attempt to perfect an appeal from a part, only, of the judgment order. In other words, that the judgment order entered by the court included not only the award of $4000 against the Parmelee Company, but also the judgment against Griffin and in favor of McCulloch and Frese; that the appeal allowed was an appeal from both branches of the judgment, while the filing of the bond was an attempt to perfect an appeal from the judgment against the Parmelee Company alone. This motion was denied by the Branch Appellate Court.

Upon the attention of the Parmelee Company being called to the language of the judgment order after the transcript had been filed in the Appellate Court and after the term of the circuit court at which judgment was rendered, that company applied to the circuit court for an order amending the record. The judge of that court inspected the minutes made by his minute clerk, and, basing his action thereon, made an order nunc pro tunc amending the record so as to make it state in specific words that the Parmelee Company prayed an appeal from the judgment against that company. Thereafter, and after the motion to dismiss the appeal had been denied, the Parmelee Company, by leave of court, filed an additional transcript in the Branch Appellate Court showing the amended record. Griffin then moved to strike this additional transcript and again moved to dismiss the appeal. Both motions were denied. In this court he assigns as error the refusal to dismiss the appeal. He also insists that the action of the circuit court in amending its record was erroneous for several reasons. This last mentioned contention we find it unnecessary to dispose of.

The action was brought against the Parmelee Company, McCulloch and Frese as joint tort feasors. Among them, even if all guilty, there is no right of contribution. The final record entry made in the circuit court determining the rights of the parties on the merits of the controversy, while appearing upon the record as one judgment, in fact embodies two judgments,-one in favor of Griffin and against the Parmelee Company, and the other against Griffin and in favor of McCulloch and Frese. From a legal standpoint the Parmelee Company was not affected by the entry of the judgment in favor of its co-defendants. It was not a party to that judgment and under the law could not complain of the entry thereof. It had no more right to appeal therefrom than a stranger to the record would have had. Its prayer for an appeal and the order allowing the same must be held to refer to the only judgment from which it had a right to appeal, viz., that against it and in favor of Griffin. Upon the record of the circuit court as originally written the appeal allowed was properly perfected, and it is therefore of no consequence whether that court proceeded rightfully in amending its record. We are without power to review the finding of fact incorporated in the judgment of the Branch Appellate Court. Jones v. Chicago, Rock Island and Pacific Railway Co. 231 Ill. 302; Hecker v. Illinois Central Railriad Co. id. 574.

By an assignment of cross-errors in the Branch Appellate Court Griffin questioned the action of the circuit court in giving a certain instruction at the request of the Parmelee Company. That contention is renewed in this court. Upon the facts as found by the Branch Appellate Court it is entirely immaterial whether this instruction should have been given.

The judgment of the Branch Appellate Court will be affirmed. Judgment affirmed.

WILLIAM J. MCCANN, Appellee, vs. ESROM MAYER et al.

Appellants.

Opinion filed February 20, 1908.

I. TRIAL-case should go to jury where plaintiff's evidence, if true, would authorize a verdict. The issue in an action at law should be submitted to the jury where the evidence in favor of the plaintiff, standing alone and uncontradicted, is sufficient to authorize a verdict in his favor.

2. BROKERS-contract to pay commissions for introducing buyer is not illegal. An agreement by persons in control of land to pay a certain commission per acre to a broker if the latter should introduce any person to whom the persons in control should be able to make a sale is not illegal nor against public policy, and does not amount to an undertaking by the broker to sell the property or to furnish a purchaser.

3. SAME when instructions stating the general rule relating to brokers are properly refused. Instructions stating the general rule that a real estate broker employed to sell lands or procure a purchaser cannot recover commissions unless he brings about a sale or produces a purchaser ready, willing and able to buy, should not be given without the qualification that the jury believe that such was the contract, where the evidence upon that point is conflicting.

APPEAL from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Stephenson county; the Hon. R. S. FARRAND, Judge, presiding.

Louis H. BURRELL, and ROBERT B. MITCHELL, for appellants.

DOUGLAS PATTISON, for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The appellee, William J. McCann, a real estate broker, sued the appellants, Esrom Mayer and Alfred L. Parsons, a firm of real estate brokers at Freeport, in the circuit court of Stephenson county, for a commission of twenty-five

cents per acre on the sale of 11,173 acres of land in North Dakota, and obtained a verdict, followed by a judgment, for $2793.25, the amount of his claim. The defendants appealed to the Appellate Court for the Second District, where the judgment was affirmed, and they prosecuted a further appeal to this court.

The defendants had lands in North Dakota for sale as agents of the Nason-Christofferson Land Company of St. Paul, and sold 11,173 acres of said land to Henry Brockmeier. This suit was based upon an alleged contract by which defendants agreed to pay plaintiff twenty-five cents per acre on any wholesale sales, or sales of large tracts, to persons whom he should introduce and who should afterwards purchase lands. He testified to the contract and to the performance of it on his part by introducing to Parsons, one of the defendants, Henry Brockmeier, who afterwards made the purchase, and as his evidence, standing alone and uncontradicted, would have been sufficient to authorize a verdict in his favor, the court did not err in denying the motion of defendants to direct a verdict and submitting the issue to the jury.

All controversy as to the disputed facts, such as the nature of the contract and the performance of it by plaintiff, ended with the judgment of the Appellate Court and cannot be renewed here, where only questions of law can be considered.

It is assigned for error that the trial court admitted improper evidence on the part of the plaintiff. The defendant Mayer had filed a separate plea denying that he was jointly liable with his co-defendant, Alfred L. Parsons, and the plaintiff, while testifying as a witness, was asked as to various trips made by him with Parsons around the county for the purpose of selling the lands and the connection of Mayer therewith. Such questions being objected to, the court said that the evidence would be admitted, not for the purpose of showing any right of the plaintiff to recover, but as tend

ing to show the relation of the defendants and that they held themselves out as partners. The testimony of Henry W. Coffman of a purchase by him of North Dakota lands from the defendants, jointly, was also admitted, and the evidence was competent for the limited purpose stated by the court. The defendants afterward admitted the existence of the partnership and there was no further controversy about it.

Complaint is made that Brockmeier was not allowed to state how he happened to purchase the land, but the abstract shows that the objection of the plaintiff was overruled and that witness did answer the question fully and stated how he came to make the purchase. The court struck out what Brockmeier said to another person about the rates of fare out west and going out there, which was immaterial and was properly struck out.

It is also insisted that the court erred in refusing to give nine instructions tendered by the defendants. They were all to the effect that plaintiff could not recover unless he had proved that he did, in fact, introduce the defendant Parsons to Henry Brockmeier as a prospective purchaser of the lands and that the sale was actually procured and brought about by that means. It was sought by these instructions to apply to this contract the general rule that where a real estate broker is employed to sell lands or to procure a purchaser, he must perform his contract by bringing about a sale or procuring a purchaser ready, willing and able to make the purchase. If the instructions had been unobjectionable as applied to the case, it was sufficient ground for refusing them that the same doctrine was stated in several instructions given to the jury at the request of the defendants, and it is neither necessary nor proper to repeat the same rule. The instructions which were given, however, should not have been given except upon the hypothesis or with the qualification that the jury believed the contract to be as claimed by the defendants, which was