ON PETITION FOR REHEARING. Appellee forcefully contends that there should be no reversal because of the absence of a finding by the court that appellee was ready and willing to perform the contract. Each of the cases cited in the opinion involved the breach of an executory contract for the sale of goods.
In the Magic Packing Company case, supra, it was held that the party asking to enforce the contract must aver that he has complied with all the conditions of the contract or state facts showing a proper excuse for not so doing. In addition thereto, as to concurrent conditions, he must allege facts showing that he has been ready and willing to perform the same on his part.
The complaint in the Beard case, supra, averred that the defendant failed and refused to deliver the corn involved, but did not aver that the plaintiff was ready upon the delivery of the corn to pay the defendant his price according to his promise and, for this reason, the court held that the complaint was fatally defective.
There is a like omission in the Bailey case, supra, and the court held that for that reason the counts of the complaint were each substantially defective.
The Smith case, supra, involved a contract of sale of 1,000 barrels of salt, the contract having been executed on June 17, 1844, and providing for the delivery of one-half of the salt on or before the first day of the following August, and the other one-half on or before the first day of September next. The complaint averred *Page 157 that after June 17, 1844, and up to and on the first day of September then next, the plaintiff was ready and willing to accept the salt and pay for the same, but it was held that failing to include June 17 within the time when the plaintiff was ready to accept and pay, the complaint was thereby defective.
The Vankirk case, supra, holds that the plaintiff might have given a sufficient excuse for the failure to perform on his part and for not being ready, as he could have been had the defendant by his course not prevented him.
The cases relied upon by appellee do not involve executory contracts for the sale of goods and are, therefore, in view of the foregoing cases, not of controlling force. We do not deem it necessary to discuss each of these cases. We mention, however, the following cases relied upon by appellee.
In Foster v. Leininger (1904), 33 Ind. App. 669, there was involved a breach of a contract to install a telephone, and it was held that where there was an averment in the complaint that the plaintiff was ready and willing to perform all the conditions of the contract imposed upon him, it was not necessary to aver that the plaintiff had performed certain specific acts which the contract required. It was unnecessary in that case for the court to state, as it did, that the readiness to perform was not a necessary averment.
In the Peoples Bldg., etc., Assn. v. Reynolds (1897),17 Ind. App. 453, the contract involved contained reciprocal covenants or mutual conditions to be performed, and it was held that where one of the parties puts it beyond the power of the other to perform, then such other party is relieved from such performance, and that if the complaint avers such facts, it will not be demurrable. The case, however, quotes from Riley v.Walker (1893), 6 Ind. App. 622, where it was held that because *Page 158 of the defendant's failure to perform, it was unnecessary to allege performance or readiness to perform on the part of the plaintiff. But, in that case, the complaint averred that the plaintiff's contract which was repudiated by the defendant had been fully performed by the other parties thereto and it was held that a demurrer to such complaint was properly overruled. The case involved a lecture contract with James Whitcomb Riley. A careful reading of it will disclose that it is not of controlling force in this case.
The second, seventh and fourteenth findings of the court found that appellant sold to appellee the steers in controversy. Appellee contends that by this finding the court found that 7. the price had been paid by the appellee and that there was therefore nothing more for the appellee to do than to accept the steers when tendered. Appellee contends that the word sold implies that the price has been paid and relies upon Penn.,etc., Sup. Co. v. Fosnotte (1911), 48 Ind. App. 166. That the court in that case did not intend to hold that the word sold implied that the price had been paid is evident from a careful reading of the authority. The action was for part of the purchase price for goods sold and delivered. The plaintiff recovered the amount claimed below and the judgment was sustained by the Appellate Court. In executory contracts of sale, the word "sold" is held to mean "contracted to sell." Russell v. Nicoll (1829), 3 Wend. (N.Y.) 112, 20 Am. Dec. 670. In Smith v.Smith, supra, cited in the principal opinion, the word "sold" was clearly given this meaning.
The petition for rehearing is denied. *Page 159