Cohen

In December of 1975, respondents agreed in writing to sell their home to appellants for the sum of $177,000. While escrow was pending, certain disputes between the parties resulted in respondents’ instruction to the escrow agent to cancel the escrow on March 25, 1976. When advised of this, appellants, on April 2, 1976, filed their suit for specific performance of the sale agreement. Four days later they requested the escrow agent to refund the monies they had previously deposited with it, some $37,000. That request was refused on the basis no consent for the refund had been given by respondents. Appellants, on April 29, then filed another action, against the escrow agent and respondents, in an effort to recover the deposit.

On June 22, 1976, both respondents and appellants executed a document addressed to the escrow agent which in pertinent part provided: “All previous instructions given by Buyer and Seller in the above escrow are hereby cancelled, and this escrow is not to be consummated.”

The escrow agent thereupon refunded appellants’ deposit and the action to recover those monies thus being mooted, was dismissed.

On July 6, 1976, respondents then filed in the…