On Petition for Rehearing.
Lairy, J.Appellee makes the point in his petition for rehearing that this court in its original opinion does not accurately state the substance of the complaint. He asserts that the complaint does not aver, as stated in the original opinion, that he was unable to find a purchaser for the premises who was willing to pay $5,000, and that after appellants received information from appellee that he was unable to find a purchaser for the premises at the price named, appellants agreed to waive the provisions in said contract that the lands should be sold for $5,000; but that the complaint on this subject alleges that appellee did attempt to sell said land for said $5,000, and did spend much time and money in an effort to sell said lands at said price; that the best offer he could obtain for said land was $4,500, which offer was made by Clarence and Gertrude Spencer ; that appellee thereupon advised appellants that $4,500 was the best offer he had so far obtained for said land, but advised that a better offer might be obtained later on.
*1771. *176Considering the complaint as a whole, we think that the *177substance of its material averments was properly stated in the original opinion. The complaint was construed by the court on the theory that it was based on the contract, and sought to recover a commission earned under said contract. So construed, the complaint could not be sufficient, unless it showed that appellee had performed the contract on his part, by obtaining a purchaser for the property in accordance with the terms of said contract. The complaint discloses that the land was sold for $4,500, and, in order to show that this was a compliance with the contract, the complaint makes the following averments: ‘ ‘ That thereupon, and after receiving said information from said plaintiff, said defendants agreed to waive, and did waive, the provision in said contract that the land should be sold for $5,000, and agreed to let said price stand in said contract at $4,500, and agreed to accept the sum of $4,500 for said real estate.” The original opinion correctly holds that such a condition in a contract, required under the statute of frauds to be in writing, cannot be waived or modified by parol. City of Michigan City v. Leeds (1900), 24 Ind. App. 271; Carpenter v. Galloway (1881), 73 Ind. 418; Goss v. Nugent (1833), 5 Barn. & Ad. 58; Browne, Stat. of Frauds (4th ed.) §411.
2. Appellee urges that his complaint shows that he had a contract which gave him the exclusive right to sell, at any time before January 1, 1906, the real estate described therein for $5,000, and that appellants sold the premises for $4,500 on February 25, 1905, without the consent of appellee. These averments would tend to show a breach of the contract by appellants. If appellants conveyed the land to another before the time covered by appellee’s option had expired, and thereby disabled themselves from performing the contract on their part, this would amount to a breach of the contract, and would give rise to an action in favor of appellee for such breach. To be good *178upon the theory of a breach of contract, the complaint should aver facts which show that, by reason of said breach, appellants prevented appellee from purchasing the property himself, or selling it to another within the time provided in said contract and in accordance with its terms, and that appellee was thereby prevented from earning' the commission provided in the contract. It is not averred in the complaint that appellee could and would have purchased the real estate, or that he could have sold it to another at the price and within the time specified in the contract. It does not appear from any averment of the complaint that appellee was damaged by said breach, as it does not appear that appellee eould have earned the commission, even though appellants had not broken their contract by conveying the land. The complaint does not proceed on the theory of a breach of the contract, and seek to recover damages resulting therefrom; and, if it did, it would b® clearly insufficient upon that theory, for the reasons stated.
The complaint clearly seeks to enforce the written contract as modified. It is insufficient upon this theory, for the reasons stated in the original opinion.
The petition for rehearing is overruled.