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A controlling consideration in determining to what extent the pleader must go in allegation of his acts under a contract in order to fix, and thus declare in his complaint, liability of the opposite party for the breach of the contract, is that the seller ought not to be compelled to part with his property without receiving the consideration, nor the purchaser to part with his money without an equivalent in return. One cannot proceed against his adversary in the contract without an actual performance of the agreement on his part, or a readiness and ability to do so; and an averment to that effect is always made in the declaration containing the defendant's undertakings, and that averment must be supported by proof.
The contract involved the purchase and sale of property for $ 4,000. According to the buyer, although he was ready, able, and willing, and offered, to comply with his part of the contract, the seller refused to convey the property to the damage of the buyer in the amount aforesaid, with interest. The buyer claims of the seller $ 500 damages for the breach of the agreement. The seller demurred on the ground that the complaint did not state that the price was tendered. The circuit court overruled the seller’s demurrer to buyer's complaint for breach of contract. The seller appealed.
Was the allegation that the buyer was ready, able, willing, and offered to comply with his part of the contract sufficient to state a claim?
In affirming the overruling of the demurrer the court held that the allegation that the buyer was ready, able, willing, and offered to comply with his part of the contract was sufficient to state a claim. It was intended by the parties that the payment of money and the conveyance should have been contemporaneous, creating concurrent, dependent conditions upon each to do what each had engaged to do. In such circumstances it was sufficient to allege a readiness to perform, and a failure by the other side. The averment of agreement to buy at the sum stated in the complaint, no stipulation for credit being present, imported that the payment should have been cash. The counts were sufficiently definite in respect of the payment to be made by the buyer.