#### Everett P. Ketchum, Respondent, *v.*John F. Alexander, First Name “John” Being Fictitious, Real First Name unknown to Plaintiff, Appellant.

First Department,

June 4, 1915.

Pleading — complaint — action for breach of contract to repurchase stock — failure to allege tender or offer to return stock —tender not a condition precedent within- meaning of section 533 of Code of Civil Procedure.

A complaint in an action to recover damages for the breach of a contract to repurchase stock sold by defendant to the plaintiff, which alleges in substance that on a certain date the plaintiff and defendant entered into an agreement in writing (copy of which is annexed to and made a part of the complaint), by the terms of which the defendant agreed, at the option of the plaintiff, on a certain date to repurchase the stock; that on said date the stock remained in the hands of the plaintiff unsold, and he called upon defendant to repurchase; that the defendant failed to comply with the demand; that the stock is in plaintiff’s possession and remains unsold, and that “ the plaintiff has duly performed all conditions on his part to be performed,” is defective, in that there is no allegation to the effect that the plaintiff at the time he demanded a repurchase tendered the stock to the defendant or offered to return it to him.

Neither a tender by the plaintiff, nor the attitude of the defendant rendering a tender unnecessary, is a condition precedent, which may be pleaded by an allegation of due performance under section 533 of the Code of Civil Procedure.

Appeal by the defendant, John F. Alexander, from an order of the Supreme Court, made at the New York Special Term and *39entered in the office of the clerk of the county of New York on the 17th day of March, 1915, overruling a demurrer to the amended complaint.

*Merrill Bishop,*for the appellant.

*William B. Dressler,*for the respondent.

McLaughlin, J.:

Action to recover damages for the breach of three contracts to repurchase stock sold by defendant to plaintiff, each contract being set forth as a separate cause of action. The defendant demurred to each cause of action on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled and defendant appeals from the order.

The complaint alleges, in substance, for a first cause of action — and the others are similar except as to dates and amount of stock— that on January 31, 1907, the plaintiff and defendant entered into an agreement in writing (copy of which is annexed to and made a part of the complaint) by the terms of which the defendant agreed, at the option of the plaintiff, on the 1st of May, 1908, to repurchase the stock from him at the price, including interest, at which the same had been sold; that on May 1, 1908, the stock remained in the hands of the plaintiff unsold, and he called upon defendant pursuant to the terms of the agreement to repurchase the same at the price agreed upon; that the defendant failed to comply with the demand for repurchase and to fulfill the terms of the agreement; that the stock is in plaintiff’s possession and remains unsold; and that “the plaintiff has duly performed all conditions on his part to be performed.”

The defendant contends that the complaint is defective, inasmuch as there is no allegation in any of the causes of action attempted to be set forth to the effect that the plaintiff, at the time he demanded a repurchase, tendered the stock to the defendant or offered to return it to him.

I think the contention is well founded. The rule is well settled that the vendor of personal property cannot put the vendee in default and recover for a breach of contract without tendering a delivery, and alleging that fact in the complaint, and *40proving it at the trial. *(British Aluminum Co., Ltd.,*v. *Trefts,*163 App. Div. 184.) To hold otherwise would be to permit the seller to recover not only the purchase price, but to retain the property sold. *(Delaware Trust Co.*v. *Calm,*195 N. Y. 231.) "The action is at law, and before a recovery can be had it must appear that a tender was made or the same rendered unnecessary by the attitude of the defendant. This fact must be set out in the complaint, so that proof of it can be offered at the trial. There is no such allegation in any of the causes of action attempted to be set out in the complaint, and, therefore, each is defective.

The learned justice at Special Term, as appears from his memorandum, was of the opinion that a tender could be inferred from the allegation that *“*plaintiff has duly performed all conditions on his part to be performed.” This allegation in each instance is set out as a separate paragraph and does not, in terms, refer to the contract. But assuming that it does refer to it, it does not aid the plaintiff, notwithstanding the provisions of section 533 of the Code of Civil Procedure. One can invoke the aid of this section only in pleading the performance of conditions precedent specified in a contract. Neither tender nor the attitude of the other party rendering a tender unnecessary is such a condition. They are facts outside of the contract which must be alleged and proved before recovery of damages can be had for the breach of a contract.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the demurrer sustained, with ten dollars costs, with leave to serve an amended complaint on payment of the costs in this court and in the court below.

Ingraham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, with leave to plaintiff to serve amended complaint on payment of costs in this court and in the court below.