In most cases when drawing a complaint for the recovery of a broker's commissions, either of two methods may be adopted, - the party may, at his option, state the facts constituting the cause of action as they actually existed or according to their legal effect.3
Thus a complaint 4 alleged that the defendant was indebted to the plaintiff in the sum of $591.18 - a balance due from the defendant for work, labor and services in advertising done for and at the special instance and request of the defendant. The proof showed an agreement between the parties that plaintiff should do certain advertising for the defendant and be paid in tickets of the defendant; that plaintiff performed the work and received a certain quantity of the tickets, but not all that he should have received, the amount stated in the complaint being still due. Plaintiff demanded the balance of the tickets from the defendant but was refused. Complaint sustained.
Where there is a special agreement, and the plaintiff has performed his part, the law raises a duty on the part of the defendant to pay the price agreed upon, and the plaintiff may rely either on this implied assumpsit or on the express agreement.5
From what has been said in the preceding section, it seems that the broker, having performed his part, may allege that the defendant is indebted to him in a stated sum for work, labor and services performed at the special instance and request of such defendant6 and, in New York State, at least, this regardless of whether the original agreement was for payment in money or in property of another kind. "The rule in this state seems to be that where a party agrees to pay a specific sum, * * * or the value of the services in some specific articles of property, and upon demand refuses or fails to deliver the property, his obligation is thereby converted into one for the payment of money."7
* N. Y. News Pnb. Co. v. Natl. Steamship Co.. 148 N. Y. 39 (1895), (citing Bennett v. Judson, 21 N. Y. 238 (1860); Farron v. Sherwood. 17 N. Y. 227 (1858) ; Barney v. Worthington, 37 N. Y. 116 (1867) ). See also Hosley v. Black, 28 N. Y. 438 (1863).
4 N. Y. News Pnb. Co. v. Natl. Steamship Co., supra.
5 Farron v. Sherwood, 17 N. Y. 227 (1858).
When the contract of employment is fully performed and nothing remains but to pay, the compensation may be recovered on the common counts.8 Thus a real estate broker's commission that has been fully earned under an express contract may be recovered under the common counts.9
In Leimbach v. Regner, 70 N. J. L. 608 (1904), nonsuit was entered on a claim for commission, the contract of employment not being in writing as required by the New Jersey statute and the broker having sought to recover on a quantum meruit.10
If the broker prefers to plead the facts as they existed,11 he may do so but must observe the formalities. "Under our Code of Civil Procedure a complaint must contain a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition. Sec. 481, subd. 2. * * * This is nothing more than a restatement of the rule as it existed prior to the adoption of the present Code. While it is no longer necessary, as it was under the old system, to plead the conclusions of law which followed the facts previously stated, it is essential to set forth every material fact which forms a part of the cause of action or defense."12
6 See cases cited under preceding section : and see Form 47 infra, Ch. XLI.
7 N. Y. News Pub. Co. v. Natl. Steamship Co., 148 N. Y. 39 (1895), (citing 1 Sedg. on Damages (8th Ed.). Sec. 280; Gleason v. Pinney, 5 Cow. (N. Y.) 152; Smith v. Smith. 2 Johns. (N. Y.) 235; Brooks v. Hubbard, 3 Conn. 58.
8 Menifee v. Higgins, 57 III. 50 (1870).
9 Risley v. Beaumont, 71 N. J. L. 372 (1904).
10 See Sec. 333 infra as to necessity of pleading that broker's authority to sell was in writing where statute requires writing, 11 See Sec. 329 supra.