Arnold v. Wells

¶1OPINION OP THE COURT.

¶2(after stating the facts as above) — [1] Mullen v. Bower, 22 Ind. App. 294, 53 N. E. 790, Miller v. Stevens, 23 Ind. App. 365, 55 N. E. 262, and Lunsford v. Bailey, 142 Ala. 319, 38 South. 362, cited by appellees, are to the effect that the allegation “that plaintiffs fully performed the conditions and terms of said contract as by them contracted, and furnished a purchaser for defendants’ said lands,” is a sufficient averment that a sale was actually consummated between the defendants and the purchaser furnished by the plaintiffs, but we -find by the- greater weight of authority such an averment is not considered sufficient. See Booth v. Moody, 30 Or. 222, 46 Pac. 884, citing rases: Sullivan v. Milliken, 113 Fed. 93, 51 C. C. A. 79; 8 Ency. Pl. & Pr. 832.

. “The rule unquestionably is that, before a real estate broker can recover his commissions, he must allege and prove, either that he was the procuring cause of an actual sale, or that he produced a purchaser ready, able, and willing to purchase upon the terms named by the vendor.” Booth v. Moody, supra.

¶3[2]' The general averment by plaintiffs, that they performed all the conditions of their contract on their' part to be performed and furnished a purchaser for defendants’ lands is claimed to be sufficient, in view of section 4153, Code 1915, which provides:

“in pleading the performance of a condition precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be state generally that the party duly performed all the conditions on his part … ”

¶4When, however, it- is considered that such a contract as this may be performed in more than one way* that it is in the alternative, the statutory rule does not apply. The rule is thus stated in Cyc., vol. 9, p. 723:

“Thus, where the covenant, is indefinite or in the alternative, the general averment is not sufficient, but the quo modo must be stated.”

¶5The judgment of the lower court is reversed.