Mr. Justice Bakerdelivered the opinion of the court.
Abstract of the Decision. Brokers, § 71*—when judgment for plaintiff improper. In an action to recover broker’s commissions for negotiating an exchange of real estate, where the affidavit of claim is for “the usual, ordinary and customary brokerage commission,” but where the evidence for plaintiff showed that there was a special agreement as to the rate of commission to be paid plaintiff by defendant, held error to stop defendant in his testimony and to refuse to allow him to continue or to hear his other witnesses and to announce a finding and judgment, where defendant testified that the agreement was that defendant should not be liable for plaintiff’s commissions but should obtain them from the other party to the exchange.