
    Foxlea Enterprises, Inc. v. Powell
    
      John B. Manche, for plaintiff.
    
      F. R. Martsolf, for defendant.
    September 23, 1977
   RAMBO, J.,

On October 21, 1975, Kathy N. Powell contracted with Foxlea Enterprises, Inc., for the purchase of real property in New Cumberland, which included a house then under construction. The contract stated that settlement would be on or about December 15, 1975. The parties did not settle on that date, but on December 13, 1975, they entered into a pre-settlement lease and defendant occupied the house. By the end of May in 1976, settlement had not occurred. Defendant vacated the premises at that time.

Plaintiff sued for breach of the sale contract the following November. In response defendant moved to strike the complaint and/or have a more specific complaint. Defendant also demurred on the ground that the complaint fáiled to state a valid cause of action. Because we dispose of the preliminary motions on the basis of the demurrer, discussion is limited to the latter proposition.

The complaint does fail to state a cause of action. In assumpsit, if there is a condition precedent to a party’s duty to perform, there must appear in the complaint at least the general allegation of compliance with that condition: Bouma v. Travelers Ins. Co., 110 Pitts. Leg. J. 75 (1961). In a contract for the sale of a house under construction there is an implied condition precedent that the construction be completed in accordance with the agreement between buyer and seller. Plaintiff does not allege that the house had been completed and that the corporation was itself ready to proceed to settlement. Those conditions had to be met before the defendant’s duty to perform arose. Thus, plaintiff has not pleaded sufficient material facts to show the liability which it seeks to have: enforced.

ORDER OF COURT

And now, September 23, 1977, defendant’s preliminary obj ection in the form of a demurrer to the complaint is sustained. Plaintiff is ordered and directed to file an amended complaint within 20 days of this order.  