Mack

Plaintiff sued to recover a penalty on a real estate broker’s bond. The cause was tried without a jury and findings and judgment were for the bonding company. Prior to trial the plaintiff voluntarily dismissed as to the brokers.

The appeal presents a single question of fact. During the year 1931 the plaintiff delivered to the brokers at various times sums of money to be used by the brokers in the purchase of two lots owned by the Ellis Landing and Dock Company. The full purchase price was fixed at $5,400. When the first payment was made the plaintiff accepted a receipt from the brokers reading: ‘ ‘ This is an option for 180 days, terms to be made then or deposit refunded.” Subsequent receipts were accepted “on account of option”, or “on account of lots”. On December 29, 1931, the brokers gave the plaintiff a receipt for $1100, representing all payments theretofore made. At plaintiff’s request this receipt was dated back to May 19, 1931. It recited that the total purchase price of the lots was $5,130, payable $1100 cash and the balance in January, 1932, the deposit to be forfeited if full purchase price was not paid as agreed. The difference between the original price of $5,400…