Morrison

Plaintiffs, Mr. and Mrs. Morrison, appeal from that part of a judgment denying recovery from defend ants M. E. Frazier and F. & S. Management & Investment Corp., of the sum of $5,000 allegedly received by the latter for the use and benefit of the former.

Plaintiffs claim they paid the $5,000 to defendants as a deposit on the purchase price of property under a contract of sale evidenced by escrow instructions. The contract was terminated by mutual consent. Defendants claim that $5,000 was paid to them in consideration for an extension of the time within which plaintiffs might perform under the contract.

The transaction was initiated by negotiations between plaintiffs and a broker acting on behalf of defendants to whom plaintiffs paid a deposit of $1,000. Escrow instructions were executed by the parties which provided, in substance, plaintiff would purchase and defendants would sell the property in question; plaintiffs would pay $50,000 in cash, and assume a $50,000 encumbrance; the $1,000 deposit was to be placed in escrow forthwith; the remaining $49,000 in cash was to be placed in escrow prior to December 10, 1965; and defendants were to deposit in escrow prior to that date all…