The broker cannot set up in his complaint one cause of action and recover on another, against the objection of the defendant, and without amendment of his complaint.1 This is, of course, merely in accordance with the fundamental rule that a judgment shall be secundum allegata et probata.2
A complaint in an action for broker's commissions failing to allege non-payment of an earned commission, or an indebtedness for same, does not contain the "plain and concise statement of the facts constituting each cause of action" required by subdivision 2 of Sec. 481 of the New York Code of Civil Procedure, where the other averments thereof are not equivalent to an allegation of non-payment.3
In Mott v. Minor,4 it seems to be suggested that the complaint should allege that the broker's authority continued till the time when his purchaser was secured, or at least that it should inferentially so appear from the complaint and that otherwise the complaint would be fatally defective, and consequently the revocation of the broker's authority is provable under a general denial and without being set up as a defense. This because the rule is that "any facts which tend to disprove some one of the material allegations of the complaint may be given in evidence under the denial."
Add to footnote 19:
The complaint must allege employment. Hevia v. Wheelock, 155 App. Div. 387; 140 N. Y. Suppl. 351 (1913).
It is competent for the plaintiff in such action to show an employment by an agent under an allegation of employment by the defendant, because the act of the agent is the act of the principal. Cannon v. Bannon, 151 App. Div. 693; 136 N. Y. Suppl. 139 (1912). See also Sec. 337.
1 Silvert v. Kommel, 138 App. Div. 229; 122 N. Y. Suppl. 846 (1910). 2 Bryant v. Avres, 190 111. App. 499.
3 Reis Co. v. Post, 162 App. Div. 463; 147 N. Y. Suppl. 845 (1914). 4 (Cal. App.) 106 Pac. 244 (1909).
Add to footnote 27:
First Nat. Bk. v. Story, 200 N. Y. 346; 93 N. E. 940 (1911).
Add to footnote 28:
First Nat. Bk. v. Story, supra.
On page 888, after "a complete sale"39, add:
"A real estate broker negotiating a sale of land for a person who agreed with him, in writing, to convey it to the intending purchaser, from whom he was to receive his commission, may maintain an action for breach of contract upon refusal of such person to convey, upon showing that the purchaser was ready to take and pay therefor.
"In such case the measure of plaintiff's damages is the amount he would have received as commission from the intending purchaser, had defendant complied with his contract."5
A complaint in a broker's action for commissions setting out a contract whereby the broker was entitled to commissions "upon passing of title as agreed," fails to state a cause of action where it is not alleged that the title passed, or that it failed to pass by reason of some fault on the part of the defendant.7