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Contracts Keyed to Burton
Fry v. George Elkins Co.
Citation:
162 Cal. App. 2d 256, 327 P.2d 905Facts
Fry (plaintiff) submitted a written offer through George Elkins Company (co-defendant) to purchase the Millers’ (co-defendant) home for $42,500. Fry submitted a check for $4,250. Fry’s offer was conditioned upon him obtaining a $20,000 loan at 5% for 20 years. Fry was advised to contact Western Mortgage Company to refinance a loan for a 20-year term, but never did so. A representative from Western Mortgage contacted Fry twice, but Fry did not ask whether Western Mortgage would make the loan for a 20-year term. Instead, Fry applied to two banks, both of whom rejected his application for a loan. Fry wrote to the Millers to rescind the deal due to his inability to obtain the loan on which the transaction was conditioned. The Millers agreed and sold the home to another buyer, Rothschild. To facilitate the new sale, the Millers had to hire an attorney for $250 for the sale and also had to pay George Elkins the brokerage commission of $2,125. Fry sued the Millers to recover his deposit, but the trial court deducted the Millers’ $250 attorney fee and the $2,125 brokerage fee from Fry’s judgment. As a result, Fry received a judgment of only $937.50.
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