Real estate brokers — Commissions — Receipts — Agreement to return down money if mortgage is not obtained — Waiver — Subsequent agreement with owner — Evidence.
1. Where it appeared that an employee of defendant, a real estate broker, delivered to plaintiff a writing which acknowledged receipt of a check in a stated sum, as down payment on a farm owned by A, subject to acceptance by the owner and provided that the check was to be returned if the deal was not completed or if plaintiff could not obtain a mortgage to cover the balance of the purchase price; that, after paying the down money, plaintiff entered into a written agreement with A, the owner of the farm for its purchase, which agreement was silent as to a conditional return of the down money to plaintiff but mentioned that defendant was not responsible for securing mortgages on the property; that the mortgage specified in the receipt was not obtained and the sale was not consummated; it was Held that plaintiff was entitled to return of his down money, in accordance with the condition in the receipt.
2. In such case, plaintiff did not waive the benefit of the provision of return of the down money by signing the agreement of sale with the farm owner, who never became a party to defendant's stipulation; nor did the clause in the agreement providing that defendant should not be held responsible for securing mortgages on the property constitute a release by plaintiff of the condition in defendant's receipt.
Argued November 9, 1943.
PER CURIAM, January 27, 1944:
The judgment is affirmed on the opinion of Judge SHANAMAN.