Kupfrian Park Co. v. Runcie , 49 Ind. App. 32 ( 1911 )

Adams, J.

1. Appellee, a real estate agent doing business under the firm name of W. C. Runcie & Co., entered into a written contract with appellant, wherein he agreed to act as appellant’s agent, and assist said company in selling certain lots in Evansville, Indiana, platted and known as Kupfrian park. By the terms of the contract, appellee was to receive for his services ten per cent of all sales made through his agency. He was also to receive a bonus of five per cent on sales over $10,000, and a bonus of five per cent on all sales made through his agency, provided they amounted to $10,000.

The complaint sets out a copy of the contract, and alleges that by the terms thereof appellee was to receive for his services ten per cent of all sales made through his agency; “that there was made through the agency of the plaintiff, under said contract, a sale of real estate to Pitt Y. McCoy, in the sum of $1,000, and for which plaintiff is entitled, and defendant is indebted to plaintiff in the sum of $100, which amount is due and wholly unpaid.”

A demurrer for want of sufficient facts was overruled to this complaint. Trial was by the court, and finding for appellee. Motion in arrest of judgment overruled, and; judgment for appellee in the sum of $100.

■ It is contended that the complaint is insufficient to state a cause of action. It is challenged by a demurrer and by a motion in arrest of judgment. These are the only questions presented upon appeal.

2. It is urged that the complaint is bad, in that it contains no averment that plaintiff performed all the conditions required of him by the terms of his contract. There is no merit in this contention. It is true that where an action is brought upon a written contract, the general rule requires the party asserting his right by virtue of the contract to allege performance upon his part, or such reason for nonperformance as will, excuse him. Section 376 Burns 1908, §370 R.i S. 1881, provides that in pleading the performance of a condition precedent in a contract, it is sufficient to allege generally that the party performed all the conditions on his part. At common law a complaining party was required to set out in detail the acts done by him in the performance of the conditions of his agreement. The rules of code pleading do not imperatively require that general allegations as to performance shall be made, but permit the use of specific allegations. Elsbury v. Shull (1904), 32 Ind. App. 556; Phenix Ins. Co. v. Wilson (1892), 132 Ind. 449, 451; Kenney v. Bevilheimer (1902), 158 Ind. 653.

The complaint avers that appellee, under the terms of said contract, made a sale of real estate for the sum of $1,000, and is entitled to ten per cent thereof, or $100. It does not appear that the contract was for any certain time, nor was there any stipulation as to when commissions were due. There was no provision as to the amount of real estate appellee was to sell before being entitled to receive his commissions. It is, however, to be inferred that his commissions were due on any amount sold by him, as it was provided that a bonus of five per cent was to be given if the sales amounted to $10,000. Appellee is not claiming a bonus, as the sales made by him amounted to only $1,000. A cause of action is clearly stated in the complaint, and there was no error in overruling the demurrer.

3. The complaint being good when tested by demurrer, it follows that it is good as against a motion in arrest of judgment.

The judgment is affirmed.