Phillips

Basically, plaintiffs’ complaint is an action to recover earnest money following the failure to consummate an agreement to purchase a restaurant. Plaintiffs Phillips recovered judgment against J. K. MeEldowney, the defendant seller, and defendant Thomas F. Barton, Jr., the broker; defendant MeEldowney appeals.

On October 26, 1959, plaintiffs Prank and Lydia Phillips had extended discussions with defendant J. K. MeEldowney for the purchase of the latter’s restaurant business known as The Three Palms. Following the discussions, plaintiffs and defendant MeEldowney executed a “Deposit Receipt & Offer to Purchase.” It specified a price of $50,000, payable as follows: $14,000 “upon the completion of stock transfer,” which sum included a $5,000 deposit, receipt of which was acknowledged; balance to be paid at the rate of $500 or more per month beginning January 1, 1960. The document also said: “Buyer submits this offer, subject to the following terms and conditions: 1. Subject to the approval of the lease by the buyers; 2. Subject to seller executing an agreement stating that buyers will be held harmless by the seller from any and all claims, bills, liens, and charges arising out of the…