Merritt v. Davis, 71--1397
| Decision Date | 08 August 1972 |
| Docket Number | No. 71--1397,71--1397 |
| Citation | 265 So.2d 69 |
| Parties | Frederick R. MERRITT and Francesca B. Merritt, his wife, Appellants, v. Richard K. DAVIS, and S. George Albion, An Escrow Agent, Appellees. |
| Court | Florida District Court of Appeals |
Louis Schneiderman, Miami, for appellants.
Hall & Hedrick and Michael D. Sikes, Miami, for appellees.
Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.
Plaintiffs-sellers appeal the entry of a summary final judgment in favor of the defendants-purchasers in an action to recover a $5,000 deposit being held in an escrow agent's possession in connection with a written contract for the purchase and sale of real property. We affirm.
The deposit receipt agreement contained the following provisions:
'The terms and condition of sale are:
1. All cash at closing.
2. The buyer is entering into this Agreement subject to obtaining a mortgage in the sum of $76,000.00 at 7 1/2% Interest from an institutional lender. It is understood that the buyer shall, within thirty (30) days of the date of this Agreement notify the sellers in writing if this condition has not been met, in which event the deposit made herewith shall be returned forthwith to the buyer and neither party shall have any rights hereunder.'
The purchaser declined to go through with the transactions for failure to obtain a mortgage in the amount of $76,000.00 from an institutional lender, and the sellers sued to recover the deposit money.
The point on appeal is whether the condition precedent of 'obtaining a mortgage in the sum of $76,000 at 7 1/2 per cent interest from an institutional lender was substantially met by a $74,400 institutional mortgage and a purchase money second mortgage for $1,600 on the same terms and conditions as the institutional mortgage.' The trial court granted defendant's motion for summary jdugment, and set forth in the judgment that there was no genuine issue of fact; that the deposit receipt agreement provided that the defendant would pay 'all cash at closing'; that 'all cash at closing' did not contemplate any obligation upon the defendant-purchaser to accept plaintiffs-sellers' offer of a second mortgage to supplement a commitment for less than the prescribed $76,000 financing; that the defendant was justified in rescinding said agreement because of his inability to fulfill the condition precedent, and that as a result the defendant is entitled to have his deposit of $5,000 returned to him.
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