Fry v. George Elkins Co.

Fry (plaintiff) offered to buy Miller's (defendant) home for $42,500, conditioned on obtaining a $20,000 loan at 5 percent interest over 20 years, and put down a $4,250 deposit through brokerage firm George Elkins Co. (defendant). Elkins told Fry an existing 5 percent loan on the property, held by Western Mortgage, could likely be refinanced to give him the needed $20,000, and a Western Mortgage representative repeatedly contacted Fry assuring him such a loan would be available if he completed the application -- which Fry never did, instead applying to two other banks that rejected him, before telling Miller he wanted to rescind for lack of financing. Miller then resold the home to another buyer at a lower price using Western Mortgage financing, incurring extra costs including the brokerage commission Fry's breach triggered; Fry sued to recover his full deposit, the trial court deducted Miller's resulting extra costs and awarded Fry the remainder, and Fry appealed.