McClenahan

Plaintiffs appeal from an order granting defendant’s motion for a nonsuit. In granting the motion, the trial court said: “It is the opinion of the Court that there was no diligence shown in this case in the sale of this house. The plaintiffs being in the building business and knowing the market value, and, in fact, the market rising rather than dropping, the Court feels that the defendants in this case didn’t have much to say as to the sale of this property.”

On September 20, 1948, plaintiff as “Seller”, defendant as “Purchaser” signed a document entitled “Deposit Receipt.” “Purchaser” agreed to buy and “Seller” agreed to sell in accordance with the terms and conditions of the receipt. The total purchase price was “Overhead [sic] [the parties at the trial apparently proceeded on the theory that this meant ‘cost of building the house’] plus 10% profit in addition to $4900.00 for the lot.” Defendant was to furnish plumbing, heating, sheet metal and kitchen cabinets and equipment “which amount sellers shall not pay or allow to purchasers until said deal is consummated.” Five thousand dollars was to be paid on or before September 27, 1948. “. . . the balance of same is to be paid…