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went to Lamar, Colorado, and there met William J. Halleck, president of the Amity Land and Irrigation Company. Halleck testifies that at this meeting he and Hinsley had some talk about the Kansas lands; that he (Halleck) endeavored to show Hinsley that the canal would be valuable to the Kansas lands if it was extended to them, and that Hinsley was mildly interested in the matter and said he would write to appellants about it; that he (Halleck) was not then acquainted with appellants and had not had any previous communication with them. Halleck soon afterwards returned to New York, and, after some correspondence with Hinsley, brought the matter to the attention of the president of the Western National Bank of New York, that bank being the beneficial owner of the canal. In June, 1894, Halleck went to Chicago and met Samuel H. Graves, one of the appellants, and opened negotiations with him, which Halleck says brought about a consolidation of the interests of the irrigation company and appellants, such consolidation being the transaction evidenced by the contract between that company, the owners of the Kansas lands and the appellants, of date February 18, 1895, hereinafter referred to.

According to Hinsley's testimony, he went to Lamar and met Halleck, showed him a map of the Kansas lands, described their location and asked him if the canal could be extended to those lands. Halleck wanted to sell the ditch, but Hinsley told him it was his (Hinsley's) business to sell the lands. Hinsley asked Halleck whether he knew appellants, and Halleck replied that he did not. He then gave Halleck a map of the Kansas lands, with appellants' address, and Halleck said he would call and see appellants on his way to New York. Hinsley reported this meeting with Halleck to appellants by mail. Thereafter Hinsley, at the request of appellants, made frequent examinations of the irrigating ditch throughout its course, and obtained information concerning the capacity of the ditch, details concerning its construction, the supply of water furnished at its source, the probable benefit to the Kansas lands if extended to them, and various other facts tending to show the advantages which would be derived from the extension of this ditch to the Kansas lands, all of which he reported to appellants in numerous letters sent by him at various times during the summer and autumn of 1894.

The negotiations between the Amity Land and Irrigation Company and appellants culminated in the execution of a contract on February 18, 1895, the substance of which is as follows: After reciting that the Amity Land and Irrigation Company is the owner of certain lands, water rights and irrigation ditch in the State of Colorado, that William Austin, Edward Ford North and Robert Edward Bateman are the owners of certain unencumbered lands in Hamilton, Gray, Kearny and Finney counties, Kansas, aggregating 96,419 acres, for which Close Bros. & Co. are agents and managers, and that it is the mutual desire of the parties that the Amity company should extend its irrigation ditch into the State of Kansas and supply said lands with water for irrigating purposes, the contract provides: (1) That Austin, North and Bateman shall deed, subject to trust deed securing the three series of bonds, aggregating $1,160,000, thereinafter provided for, to the Amity Land and Irrigation Company, (referred to as the Amity company,) or its successors or assigns, the Kansas lands, and in payment therefor shall receive from the Amity company $600,000 in bonds and forty-nine per cent of the stock of the Amity company, its successors or assigns; (2) the Amity company agrees to enlarge its ditch in Colorado and extend it to the Kansas lands; (3) the Amity company shall issue bonds amounting to $1,160,000,-$200,000 to be used for the enlargement and extension of the Amity canal and to constitute a first lien, $360,000 of the bonds to be used to take up outstanding bonds against the Colorado property of the Amity company and to constitute a second lien, and

$600,000 of the bonds, to be known as purchase money bonds, to be delivered to Austin, North and Bateman in payment for their Kansas lands and to be a third lien,-all of said bonds to be secured by trust deed upon all the property, lands, water rights and franchises of said Amity company, its successors and assigns, including the said Kansas lands; (4) provision for the application of the income to the maintenance of the canal and payment of interest and bonded indebtedness; (5) Close Bros. & Co. to take charge of the lands and endeavor to sell them.

The parties to this contract were, first, the Amity Land and Irrigation Company; second, Austin, North and Bateman, the owners of the Kansas lands; and third, Close Bros. & Co., the agents for the sale of the Kansas lands.

For the purpose of carrying out the provisions of this contract the parties thereto organized the Amity Land Company, a corporation, under the laws of Kansas. Austin, North and Bateman, by deeds dated May 3, 1895, conveyed the Kansas lands to the Amity Land Company and the Colorado corporation conveyed the Colorado lands to the Kansas corporation. Forty-nine per cent of the capital stock of the new corporation was issued to Leonard H. Hole as trustee for Austin, North and Bateman, and fifty-one per cent to Hole as trustee for William N. Coler, Jr., representing the owners of the stock of said Amity Land and Irrigation Company. The bonds were issued and delivered as provided by the contract. Thereafter, on May 22, 1895, a new contract was made between appellants and Hinsley, whereby Hinsley from that time received a salary instead of commissions. During the month of July, 1895, acting under directions from appellants, he removed to Holly, Colorado, and thereafter resided there in charge of appellants' branch office, and acted as field agent for the Colorado lands owned by the Amity Land Company, until October 10, 1896, when he quit their service. According to his testimony he did not know that the Kansas lands had been deeded to the Amity Land Company until December, 1896, and did not, prior to that time, know the terms of the contract of February 18, 1895. On January 13, 1897, he for the first time demanded commissions under his contract of December 10, 1888, and payment being refused, brought this suit.

The declaration under which the case was tried consisted of counts declaring upon the contract and the common counts, including a quantum meruit count. On the first trial the jury returned a verdict for $31,632.58 in favor of Hinsley. The superior court required Hinsley to remit $18,967.54 of this amount and rendered judgment against the appellants for $12,665.04. Upon appeal to the Appellate Court for the First District the judgment of the superior court was reversed and the cause remanded, for the reason, as stated in the opinion of the Appellate Court, that the verdict of the jury was a finding that appellants were liable under the first clause of the contract of December 10, 1888, but was not a finding that they were liable under either the second or third clause; that the verdict was against the overwhelming preponderance of the evidence, so far as the right to recover under the first clause of the contract was concerned, and that the superior court should have set aside the verdict and granted a new trial instead of requiring a remittitur and rendering a judgment not based on the verdict of the jury, but based solely on the finding of the court that appellants were liable under the second clause of their contract. Close v. Hinsley, 104 Ill. App. 65.

After the remanding order of the Appellate Court had been filed in the superior court Hinsley died, and his death being suggested to the court, D. H. Browne, as administrator of his estate, was substituted as plaintiff. The cause was re-docketed in the superior court and was again tried before a jury. Upon the second trial appellee expressly waived all claim to the commission of twenty-five cents per acre under the first clause of the contract, which related to sales made by Hinsley without assistance from the appellants or their


other agents, and the case was tried under the counts of the declaration based on the second and third clauses of the contract and the common counts. The trial resulted in a verdict against appellants for $14,454.90. Appellants filed a motion for a new trial, which was overruled. A motion in arrest of judgment was likewise overruled, and the superior court rendered judgment upon the verdict for $14,454.90 against the appellants. This judgment was affirmed by the Branch Appellate Court for the First District, and appellants bring the cause to this court.

The grounds urged for reversal are, that the superior court erred in refusing appellants' motion, made at the close of all the evidence, to instruct the jury to return a verdict in their favor, and that the court erred in giving, refusing and modifying instructions.

F. C. ELLIOTT, for appellants.


Mr. JUSTICE Scott delivered the opinion of the court:

The superior court held, in passing upon the instructions offered by the respective parties, that the transaction between the owners of the Kansas lands, the Amity Land and Irrigation Company and the appellants, set forth by the contract of February 18, 1895, constituted a sale of those lands, and so advised the jury by instructions, and submitted to the jury the question whether such sale was made through the assistance of Hinsley or under his advice. The action of the court in holding that transaction to be a sale is the principal ground upon which a reversal is sought.

The contract between the appellants and Hinsley, upon which the appellee bases his right to recover, provided that Hinsley should act as the appellants' agent for showing and selling the Kansas lands; that he should be authorized to

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