This action was instituted by Irving Haber against Abraham Katz in the Cleveland Municipal Court to recover commission alleged to have been earned by Haber in the procurement of a purchaser of property belonging to Katz. Judgment in the Municipal Court was in favor of Haber and it. was affirmed on error proceedings by the Court of Appeals.

The case is taken to the Supreme Court and it is claimed by- Katz that the judgment rendered in- favor of Haber in both courts was so done without the submission by ’him of any evidence! tending- to show any employment whatever and also without any evidence of stipulated terms of sale and purchase with the alleged purchaser and likewise without any evidence that the alleged purchaser was ready, willing and able to purchase the property in question.

It is claimed by Katz that Haber sought to purchase the property for a client who was his brother, both being associated, with the Cleveland United Realty Co., the said Irving Haber being the manager of this corporation. It is further claimed that Katz did not want to sell the property at all and 'was not in the market, thus showing, it is urged, that the Haber brothers were co-operating together for their mutual benefit with out disclosing to Katz that nominally at’ least, each one belonged to a company of his -own -in order to carry out their -joint plans, as speculators, of prevailing upon some owner to sacrifice his property in a desired locality..

’ It is alleged by Katz that if services were rendered without employment express or implied,- as a, mere volunteer and without acceptance under the circumstances named, there can be no recovery. Katz claims that Haber performed no services under any employment by him, and that nothing was ever said on the subject of commission.

It is claimed that the right of a broker to compensation rests upon contract express or implied and that the burden is’ upon him to show that his services were rendered, under employment by the principal or that the principal-accepted his agency and his acts,-under circumstances indicating that he knew the services had been rendered on his account; and while the agent was relying on the principal’s obligation to pay him. If his services were rendered without employment, expréssed or implied, as a mere volunteer and without acceptance under the circumstances-. named, he cannot recover. "