In an action by a broker for commissions lost, the plaintiff alleged that defendant gave plaintiff the exclusive right to sell the property for $3,000, defendant reserving only the right to sell the property himself for not less than that sum; that plaintiff procured a purchaser, who was ready and able to purchase for that sum, but that defendant previously sold the property for $2,500; defendant admitted the contract, except that he bound himself not to sell for less than $3,000, which he denied, and admitted that he sold the land as alleged. Held, that an instruction that if there was a contract between the paries by which plaintiff procured a purchaser, "defendant not having sold the land," then plaintiff would be entitled to recover, was erroneous, as based on the hypothesis that defendant had not sold the land, which was not in issue, defendant having admitted that he sold the land; the instruction thereby practically amounted to directing a verdict for the defendant. Hughes v. McCullough, 39 Ore. 372, 65 P. 85; Will v. Schwartz (Tex. Civ. App. '09), 120 S. W. 1039; Harris v. Morton & Co., 167 N. Y. Sup. 80; 101 Misc. Rep. 398.