Appeal from Circuit Court, Multnomah County. David Sandeberg, Judge Pro Tempore.
Donald C. Walker, Portland, argued the cause and filed a brief for appellant.
J. Robert Jordan, Portland, argued the cause for respondent Certified Realty Company. On the brief with him were Francis F. Yunker and Darrell E. Bewley, Portland. Also on the brief was Gordon H. Price, Molalla, for respondents Krupicka.
This is an action by a purchaser of real property for return of a down payment which had been declared to have been forfeited for failure of the purchaser to complete the transaction. Plaintiff appeals from an adverse judgment, following the granting of a motion by the realtor for an involuntary nonsuit and a motion by the seller for a directed verdict. The trial
court also denied plaintiff's motion for a directed verdict. We affirm.
The facts are not complicated. Defendants Krupicka listed their farm near Molalla for sale by defendant Certified Realty Company (herein "Certified"). Plaintiff, in response to a newspaper advertisement, paid $1,000 to Certified and signed a standard form earnest money receipt, as prepared by Certified. Upon acceptance by defendants Krupicka of the earnest money agreement plaintiff paid an additional $4,000, as required by that agreement.
The earnest money agreement provided for the purchase of the farm by plaintiff for $70,000, with the $5,000 as earnest money, an additional $5,000 payable "[u]pon acceptance of title and delivery of contract," and the balance of $60,000 payable in installments under a land sales contract naming plaintiff, his wife and his son as the purchasers.
The agreement also provided that:
"A title insurance policy from a reliable company insuring marketable title in seller is to be furnished purchaser in due course at seller's expense; preliminary to closing seller may furnish a title insurance company's title report showing its willingness to issue title insurance, which shall be conclusive evidence as to seller's record title.
"It is agreed that if seller does not approve this sale within the period allowed broker below in which to secure seller's acceptance, or if the title to the said premises is not insurable or marketable, or cannot be made so within thirty days after notice containing a written statement of defects is delivered to seller, the said earnest money shall be refunded. But if said sale is approved by seller and
title to the said premises is insurable or marketable and purchaser neglects or refuses to comply with any of said conditions within ten days after the said evidence of title is furnished and to make payments promptly, as hereinabove set forth, then the earnest money herein receipted for (including said additional earnest money) shall be forfeited to ...