The opinion of the court was delivered,

— There is only one error assigned on the record, and we think it is sustained. If, as proposed to be proved, Johnson, the plaintiff, knew from Barrett, anterior to the sale of the farm in question, that the one-fourth of the peach crops for one or more years was to go to others, and was not the property of Barrett to sell, and to be deducted from the gross amount of sales proposed to be made by him, and that they did so go, and the amount of the purchase-money was in fact reduced by that amount, he was certainly not entitled to thirty per cent, commissions on that sum. Barrett never received it, and the offer was to prove that he knew he was not to receive it. With that knowledge he was no more entitled to commissions on the amount deducted than if he had sold subject to liens. We think the testimony should have been received and have gone to the jury as a means of determining the amount the plaintiff was entitled to, if anything, on the basis of his claim. On the hypothesis that the deduction of the one-fourth of the peaches was necessary to enter into the calculation of what would be requisite to make the defendant whole in the sale of his property, we predicate nothing, for we see no evidence that the plaintiff was only to receive thirty per cent, of the amount he should sell the property for over and above what would make the defendant whole. That is the aspect of the case now, but for the preceding reason we think the case should be reversed.

Judgment reversed, and venire de novo awarded.