Johnson sold some real estate, and the appellants say through their agency, entitling them to commissions. They sue in assumpsit both Johnson and his lawyer, Ohytraus, who, if he had any part or interest in the business, had no other than as agent or attorney for Johnson, and even as such made no engagements with, or promise to them. As they had no cause of action against Chytraus, the court, trying the case without, a jury, rightly found for the defendants below, whether they had a good case as to Johnson alone, or not. Gribbin v. Thompson, 28 Ill. 61; Felsenthal v. Durand, 86 Ill. 230.
If the appellants desired the court to pass upon the merits of their claim against Johnson they might, under Sec. 23 of the Practice Act, have discontinued as to Chytraus, but the court could not do that for them, nor require them to do it, nor was it bound to instruct them that they ought to do it.
This point has not been made in this court, but we can not reverse a judgment in a case such that if the judgment had been the other way, we must have reversed it.
Judgment affirmed.