FRY V. GEORGE ELKINS CO.
327 P.2d 905 (1958)
NATURE OF THE CASE: This was a dispute over a deposit on the sale of a home. Fry (P)
filed an action against George (D) to recover a deposit P had made for his contemplated
purchase of D's home. P appealed an award of the difference between his deposit and the
total of the specific items of damages that D sustained
FACTS: Fry (P) made an offer on a home through George (D) a real estate broker. P sent a
check for $4,250 and his offer conditioned upon obtaining a $20,000 loan at 5% for 20 years.
The owners of the house accepted the provisions and agreed to pay D a 5% commission or one
half of the deposit if it was forfeited by P. P was told that the required loan was
available at Western Mortgage Co. if he would just file the application papers. P never
filed the papers. P had applied to two banks and they had rejected his application. P then
wrote to the owners to rescind the deal. The Millers sold their house to the Rothschilds for
$40,375 without a broker's commission but with the inclusion of $937.50 worth of personal
property. An attorney was employed for $250 to assist in the closing. P sued D for the
deposit. The trial court took the $937.50, $250, and $2,125 in broker commission and awarded
P the balance remaining from the deposit, $937.50. P appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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