Sec. 334. Full Performance And Excuse For Performance

Under a complaint setting out a contract and averring its performance by the plaintiff, evidence in excuse for non-performance has been held not admissible.33

But in Hosley v. Black, 28 N. Y. 443 (1863), it is said, "this rule is of very little consequence; for the plaintiff may amend his complaint and then give the evidence." In a case34 where the defendant made no objection to the proof, the court said that as the plaintiff did not move to amend it was in the discretion of the court, even after the close of plaintiff's case, to entertain the motion to dismiss because performance was alleged and excuse for performance was attempted to be proved.

If a waiver of performance is relied upon, it must be pleaded. A plaintiff cannot allege performance and when the same is denied change front on the trial, and establish facts excusing performance.35 "Where a complaint by a broker, employed to find a purchaser or a lender, does not allege that the transaction was consummated, it must allege that plaintiff notified defendant that a customer was found."36 A mere allegation that "because of the default of the defendant" the contract was not carried out, is insufficient. Facts should be stated.37

32 Adams v. Grady, 72 Atl. 55 (N. J. 1909), (citing 1 Chitty on Pleading, marg. p. 222 and New Jersey cases). See also Sec. 330 supra.

33 Hosley v. Black. 28 N. T. 443 (1S63) ; Stone v. Goodstein, 49 Misc. 482 (N. Y. 1906). And see Sec. 194 supra.

34Weeks v. O'Brien, 141 N. Y. 204 (1894).

35 Williams v. Fire Assn. of Pa., 119 App. Div. 573 (N. Y. 1907).

36 19 Cyc. 275.

37 Davis v. Silverman, 98 App. Div. 305 (N. Y. 1904).

But it has been held that where the principal is unable or refuses to make the trade, the broker may sue for commission.38 And where the cause of action was for procuring a sale, and the sale was prevented by the vendor, it has been held that the broker could recover as for a complete sale.39

"Where the owner induces the real purchaser to take title in the name of another person in order to keep the broker in ignorance of the fact that the sale had been made to the purchaser presented by the broker, the broker's complaint should not be dismissed on the ground that the evidence established a cause of action for fraud. Under such circumstances the broker may recover on an allegation of performance.40

Sec. 335. Pleading Special Agreements

Where the commission is to be paid out of the final payment received by the vendor, the broker must allege as a condition precedent that the vendor received the final payment. An allegation that the sum "became due "on a given date is not equivalent to an allegation of the happening of the condition precedent.41

Where it was agreed that the broker should have commissions if he furnished a purchaser at a fixed price, he is not entitled to compensation under the agreement for furnishing a purchaser at a less price. In such a case, the broker cannot recover proportionate commissions on the lesser sum, or what his services were reasonably worth, when he did not declare on a quantum meruit.42

In Morton v. Petit, 133 App. Div. 377 (N. Y. 1909), the complaint alleged that the broker was employed "to procure * * * an acceptance of a certain application made by defendant for a loan," and that the broker "procured one * * * to accept said application." The complaint was demurred to upon the ground that there was no allegation that the broker ever communicated to or notified the defendant that he had procured a person ready, able and willing to consummate the loan, but the complaint was, nevertheless, held sufficient. In McLaughlin v. Whiton,37 Misc. 838 (N.Y. 1902), it was held that an allegation that the broker was to procure a loan is not established by proving that he produced a person ready, prepared and willing to make the loan. Where the contract is to procure a loan, it should appear that it was actually secured; the right of action depending upon a condition precedent, performance should be averred.43

38 Cadigan v. Crabtree. 179 Mass. 481 (1901). 39 Riee-Dwyer R. E. Co. v. Rublman. 68 Mo. App. 506 (1896). 40 Martin v. Fegan. 95 App. Div. 154 (N. Y. 1904).

41 Nekarda v. Presberger, 123 App. Div. 418 (N. Y. 1908). And see Sec. 228 et seq., 230-234 supra.

42 Steinfeld v. Storm, 31 Misc. 167 (N. Y. 1900).