Merkeley v. Fisk

Contracts—Separate Instruments—Construction op as One—Rule. It is the general rule that two or more separately executed instruments may be considered and construed as one contract only when upon their face they deal with the same subject matter and are by reference to one another so connected that they may be fairly said to be interdependent; but this rule is not so rigid as to be absolutely unyielding in the face of a suggestion contained in the writing itself that it is not complete, or of circumstances which call for the application of a well-defined exception to the rule that a contract may be explained by reference to the circumstances under which it was made and the matter to which it relates.

Id.—Sale op Real Estate — Broker’s Commission—Pleading—Insufficient Complaint.—In an action to recover a commission for the alleged sale of real estate, an allegation in the complaint that plaintiffs had found and procured a purchaser for the land described will not suffice as an averment that the purchaser was ready, able, and willing to pay the amount designated, and upon t'he terms specified in the contract, and that allegation is not effectively aided by another and later allegation that plaintiffs immediately notified defendants that plaintiffs had found and procured a purchaser who was ready, able, and willing to purchase the land and pay the purchase price to defendants.

Id.—Procuring purchaser for Agreed Terms—Pleading.—A broker’s contract for the sale of real estate is not performed, nor is his commission earned, until it affirmatively appears that he has procured a purchaser ready, able, and willing to buy the property offered for sale upon the terms and at the price fixed by the contract, and this should be alleged in the complaint.

Id.—Purchase Price —• Uncertainty in—Allegation of Amount.—In an action to recover a commission for the sale of real estate, although the contract does not in terms disclose the precise price for which defendant’s interest in the property was authorized to be sold, and is so uncertain as to require extrinsic evidence to show the amount, this is presumably within the knowledge of the plaintiffs, and it is incumbent upon them by appropriate averments to plead the price paid and then allege that was the price which the purchaser agreed to pay.

Id.—Pleading—Performance—Prevention of Performance—Necessary Allegations.—In an action to recover a commission for the sale of real estate, whether the complaint be considered as proceeding upon a cause of action on the one hand for commissions earned and on the other hand for damages to the extent of such commissions because of the alleged prevention of performance, it fails in either event to state a cause of action where it does not allege that plaintiffs did, within the time limited by the agency contract, either before or subsequent to its revocation, procure or could have procured a purchaser ready, able, and willing to purchase for the price and upon the terms stated in the contract.