The amended declaration declares upon an agreement to procure for the defendant a customer ready, able and willing to buy the "Hollingsworth home place at Brownville, Florida," on terms stated in the written contract, which was attached to the declaration but not made part of it by apt words, "or at a price and upon terms acceptable" to the defendant. It alleges that the plaintiff procured a purchaser for the place "at a price and upon terms acceptable" to the defendant; that the purchaser so procured was ready, able and willing to buy the property for twenty-five thousand dollars payable as follows:
"Two thousand five hundred ($2500) cash and two thousand five hundred ($2500) additional cash to be paid upon delivery by said defendant of a deed to said property involved *Page 680 in said deal that was, as aforesaid, at a price and upon terms acceptable to said defendant; the balance in the sum of $20,000 to be paid in four equal annual payments of $5000 each, these deferred payments to be represented by four (4) promissory notes of equal amounts thereto, each bearing interest from date at the rate of 8% per annum; all of said notes to be secured by a mortgage on the real estate involved in said deal." It was then alleged by way of recitation that: "this being the price and terms indicated and accepted by said defendant."
It was then alleged that a contract was executed by the purchasers for the purchase of the place "at the price and on the terms acceptable to and dictated" by the defendant. A copy of that contract is attached to the declaration as a part of it. It is alleged "the purchasers tendered their cash payment of $2500 along with the sale and purchase contract and were prevented from consummation of said deal only by the arbitrary refusal of the said defendant, J. S. Hollingsworth, to consummate."
Following the signature to the declaration there appears a statement that the exhibits referred to as "A" and "B" are attached to the original declaration and are there referred to as "plaintiff's exhibit 'A' and plaintiff's exhibit 'B' and reference is here made thereto."
The one and sole object of pleadings is to present an issue of fact upon which the rights of parties to the litigation turn. That such an end may be attained in litigation and the business of the courts expedited at reasonable expense to the parties it is of necessary importance that the allegations of the declaration and the averments of the plea should be unambiguous, direct and positive and not by way of recital. See Shipman's Common-Law Pleading, 347, page 458.
The declaration in this case not only fails to meet these requirements but it is defective in matters more material. *Page 681
In the first place, the declaration alleges that the defendant employed the plaintiff in writing to procure a purchaser for the Hollingsworth home place particularly described by governmental survey in part and in part by metes and bounds. The acreage is not given. It alleges that pursuant to the agreement of employment the plaintiff offered "said defendant's property" for sale to certain persons "at a price and upon terms acceptable" to the defendant; that such persons were ready, able and willing to buy "said defendant's property for twenty-five thousand dollars ($25,000) payable as follows" — the price and terms being hereinbefore recited. Then follows the recital that: "this being the price and terms indicated and accepted by said defendant."
Aside from the fact that this allegation is not direct and positive and presented in issuable form, as the requirements of pleading demand, it is by no means an allegation that "defendant's property" which the purchaser agreed to buy was the identical land and only that which the defendant had employed the plaintiff to procure a purchaser for. A reference to the exhibit "B" shows this statement to be true because the contract which the "purchasers" signed and which is made a part of the declaration which must be construed with it not only fails to describe the land but fails to identify it as the "Hollingsworth home place" and includes certain personal property, while there is no allegation that the defendant agreed to sell the home place and the personal property at the price and upon the terms which the purchasers offered for the whole nor that he had employed the plaintiffs to sell the personal property included in the contract.
Now it cannot be said with any regard for accuracy of statement that the words "home place" used in a written agreement of employment to sell it includes all the personal property upon it. So by even a most liberal construction *Page 682 of the language of the plaintiff's declaration no case is presented because it alleges an employment to procure a purchaser for the "home place" and found one for the place and personal property at a price which the defendant dictated and which was agreeable to him for the "home place only."
The declaration does not rest upon an employment to find a purchaser for the "home place" and the personal property upon it at a price and upon terms acceptable to the defendant but it rests upon the employment to find a purchaser for the "Hollingsworth home place at Brownville, Florida" "at a price and upon terms acceptable" to the defendant.
The plaintiff, therefore, by its declaration seeks compensation for a certain service which it alleges it was employed to perform and which its pleading shows it has not performed. Or to put it differently it claims ten percentum upon the selling price fixed by the defendant on the "home place" according to the terms of a written agreement and show performance of such agreement on their part by producing a purchaser for the "home place" and certain personal property to go with it.
The averment in the conclusion of the declaration that the plaintiff under the terms of the "listing contract" is entitled to receive ten percentum of the selling price (which it was offered for the home place and personal property) is justified by no allegation of the declaration nor by any theory upon which it was framed.
The majority opinion states that: "The declaration alleged a more or less detailed description of the lands but failed to show the county or state of their location." I cannot agree to this statement concerning the allegations of the declaration in this regard. The language of the declaration is: "Defendant employed the said plaintiff to procure *Page 683 for the defendant a customer ready, able and willing to buy the J. S. Hollingsworth home place at Brownville, Florida, the same being described as follows, to-wit." Then follows an accurate description of the lands by section, township and range which, aside from the reference to "Brownville, Florida," indisputably locates the lands in DeSoto County.
The majority opinion also refers to the "incomplete description of the lands in the listing contract." Now, the "listing contract" is not made a part of the declaration and the majority opinion so states. I do not agree that either this court or the trial court may for the purpose of the demurrer to the declaration consider the terms of the "listing contract" nor any of its provisions including the description of the lands. Whether it is complete or incomplete, nor any references to other property of personal character to be included in the home place, nor do I assent to the dictum that if the description of the lands in the "listing contract" is "incomplete" such defect would not be fatal necessarily "in a suit for commission for procuring a purchaser under such a contract as that declared on which did not obligate the plaintiff to secure a legally binding contract of purchase."
I am not prepared to assert as a matter of law that where the plaintiff declares upon a contract to find a purchaser for definitely described lands at a certain price and issue is joined by defendant that the plaintiff may maintain his case by exhibiting a contract which describes no lands and which contains a clause definitely employing the plaintiff to sell at a certain price and to make a binding contract in the owner's name for the sale of lands "incompletely described" and to give and accept receipts for money or deposits received in connection with the contract of sale. It is obvious that if the so-called listing contract *Page 684 contains such a provision it is more than an employment to procure a purchaser willing, able and ready to buy.
For the above reasons I dissent from the conclusion reached by the majority of the court.