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Fries r. Brier et aL

sented on this appeal came under consideration in the recent case of State, ex rel., v. Johnson, 105 Ind. 463. The conclusion was there reached, that the section of the statute in question was not obnoxious to any of the constitutional infirmities which invalidated the previous enactment referred to, and which are the same in effect as those urged against it in the elaborate argument presented on behalf of the appellees here. The reasoning in that case embraces all that can be profitably said on the subject, and meets all the objections urged against the validity of the statute in question. It is proper to say the judgment in this case was rendered and the appeal taken before the case referred to was decided by this court.

The first paragraph of the complaint charges, among other things, that the plans and specifications which the county surveyor has prepared, and in accordance with which the contemplated repairs are about to be made, will greatly enlarge the ditch as originally constructed; that, instead of repairing and cleaning out the old ditch, as originally established under the order of the court, the purpose and plans of the surveyor contemplate the deepening and widening of the ditch, without any petition, or other proceedings had in court for that purpose. The authority of the county surveyor over the subject of keeping ditches in repair, is strictly limited, in the section above mentioned, to keeping them " in repair to the full dimensions, as to width and depth, as required in the original specifications."

The proceeding is wholly statutory, and not according to the course of the common law. To say the least, the statute confers upon county surveyors powers of a somewhat extended and anomalous character. His authority and proceedings must, therefore, be confined within and conform strictly to the statute.

It would by no means be competent for a county surveyor, under the guise of keeping a ditch in repair, to enter upon a scheme of widening and deepening the drain, no matter (roodwine c. Morey.

how desirable it might be to attain that end. When a ditch is established and constructed under the order of the court, it is then judicially determined that its width, depth and other characteristics, as described in the original proceedings, will constitute a sufficient drain for the purposes intended. These can only be changed by judicial intervention. Of course such widening as necessarily results from restoring or repairing the disturbed sides of the drain, where -disturbances have occurred, must have been contemplated.

The paragraph under consideration does not state what the width or depth of the drain, as originally constructed, -was, nor does it state the width or depth which it is proposed, by the plans under contemplation, to make it. The ■averments in that regard are too much in the nature of conclusions to justify the interference of the court. Besides, the contract between the surveyor and contractor, a copy of which is set out with the complaint, docs not indicate that the parties contemplated the widening or deepening of the drain. The contract purports to be a contract to repair the ditch.

The conclusions already reached render it unnecessary that we should consider some minor questions suggested in the argument.

The judgment is reversed, with costs, with directions to the court below to sustain the demurrer to the complaint. Filed May 18, 1887.

Ill 68! 167 272

""7 27 1 No. 12,734.

GOODTVINE V. MOREY.

'real Estate.Executory Contract to Convey.Suit to Enforce.Tender of Deed.Complaint.—Where the vendor seeks to enforce an executory contract for the conveyance of land, the complaint must aver a tender of a sufficient warranty deed, and the tender must be kept good by bringing Koodwine v. Morey.

the instrument into court, or by an averment of a readiness and willingness to execute a deed that will vest title in the purchaser.

From the Benton Circuit Court.

M. H. Walker and /. H. Phares, for appellant.

T. L. Merrick and H. S. Travis, for appellee.

Elliott, C. J.—The appellee alleges in his complaint that he entered into a parol contract with the appellant, wherein he agreed to sell the latter a tract of land; that part of the consideration was paid and possession of the land was taken under the contract. It is not averred in the complaint that the appellee has any title to the land, or that his deed will convey any, and the averment as to the tender of the deed reads thus: "That before the bringing of this suit the plaintiff executed and tendered to the defendant a good and sufficient deed of general warranty." The prayer of the complaint is for a personal judgment, and for the enforcement of a vendor's lien.

Our decisions declare that where the vendor seeks to enforce an executory contract for the conveyance of land, he must have a perfect title to the land at the time the purchase-money becomes due, and must, also, tender a warranty deed to the purchaser. Small v. Reeves, 14 Ind. 163; Parker v. McAllister, 14 Ind. 12.

In Mix v. Ellsworth, 5 Ind. 517, a great number of cases are collected, and it was there held that an action for therecovery of purchase-money could not be maintained unless a deed had been tendered; but in most of the cases there cited the question arose on a plea, so that those cases can not be regarded as fully in point here. The question as it is here presented, however, came directly before the court in Melton v. Coffelt, 59 Ind. 310, and it was decided that the pleading must aver a tender of a sufficient warranty deed, and that the tender must be kept good by bringing the deed into court, or by an averment of a readiness and willingness to execute a deed that would vest title in the purchaser. Under the Williams D. Leslie.

rule declared in the case last cited, the complaint must be held bad. There are other cases in our reports which declare a like doctrine. Cook v. Bean, 17 Ind. 504; Mather v. Scole8, 35 Ind. 1; Smith v. Turner, 50 Ind. 367; Sowle v. Holdridge, 63 Ind. 213 (218); Overly v. Tipton, 68 Ind. 410 <414).

Judgment reversed.

Filed May 20, 1887.

No. 11,968.

Williams V. Leslie.

Principal And Aqent.Real Estate Broker.Commission.Contract.— Where an agency to sell land is limited to nine months, but it is stipulated in the contract that if a customer is introduced through the agency of the broker, and a sale is afterwards consummated with such customer, the owner shall pay a commission, whether the time of the agreement shall have expired or not, the broker may recover the commission if, during his agency, he introduces a customer to whom the land is afterwards sold, whether the sale is ultimately consummated through his instrumentality or otherwise.

From the Daviess Circuit Court.
W. R. Gardiner and S. H. Taylor, for appellant.
J. H. O'Neall and D. J. Hefron, for appellee.

Mitchell, J.—On the 15th day of April, 1882, James Williams and Alexander Leslie made a written agreement by which Williams employed Leslie, upon certain stipulated terms, to sell, or introduce to him a purchaser who would thereafter purchase the farm owned by the former in Daviess county.

The contract provided that in the event of a sale brought about through the agency of Leslie, the latter was to receive as compensation four per cent, of the purchase-price of the Williams v. Leslie.

land, reckoned at $75 per acre, or at such price as Williams should accept therefor. It provided further, that if a sale was brought about outside of the influence of Leslie's agency, or if the real estate was withdrawn from the market, within a period of nine months from the date of the contract, the agent was to be paid 2 percent, commission nevertheless, and if the agent produced a purchaser for the land at the price, and upon the terms named, within the time specified, and the owner refused to complete the sale, he agreed to pay the agent full commission. The contract closed thus: "If a customer is introduced through the agency of the said Leslie, and a sale is afterwards consummated with such customer, I agree to pay the commission before mentioned whether the time of this agreement shall have expired or not."

In a complaint upon the foregoing contract, Leslie alleged that during the existence of the agency, he advertised the land for sale, and made a trip to the State of Ohio, taking Williams with him. He alleges that he introduced a Mr. Shepard to Williams, and that, as a consequence of being so brought in communication with each other, the latter consummated a sale of his land to the former, at the agreed price of $21,000. His claim is that Williams thereby became indebted to him for the commission stipulated in the contract.

The propriety of the ruling of the court in overruling a demurrer to the complaint is the only question presented.

The appellant claims, that by a fair construction of the contract, he was not liable to pay a commission unless a sale was effected, or a purchaser produced, within nine months from the date of the contract, and that as it does not appear from the complaint when the agent produced the purchaser, it did not state a cause of action on the contract.

We do not concur in this view. In effect, the contract was, that if the owner withdrew the land from sale, or effected a sale outside of the appellee's agency within nine months, he was nevertheless to pay the agent 2 per cent, commis

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