Shaper v. Gilkison (217 S.W.2d 878, 1949)

HUGHES, Justice.

This suit is by a purchaser for the recovery of $1,000 deposited under the terms of a contract for the sale of real estate.

Appellee, Joseph I. Gilkison, and his wife were the “purchasers,” appellant George A. Shaper and his wife were the “sellers,” and appellant L. Lee Brasfield was the agent of “sellers.”

The contract was made upon a printed form called “Contract of Sale and Receipt of Earnest Money.” The handwritten provisions of this contract, which we will .indicate, were all inserted by the agent Bras-field. The material provisions of the contract are: _

“Mr. & Mrs. Geo. H. Shaper, hereinafter called Seller, acting through the undersigned and duly authorized Agent, hereby sells and agrees to convey unto Mr. & Mrs. J. I. Gilkison, hereinafter called Purchaser, the following described property: Lying and situated in the County of Travis, State of Texas, House & lot and all improvements located at 2707 Warren St. Austin,. Texas. Lot size being approx. 1 acre.

“The purchase price is $14,500.00, payable as follows: $14,500.00 Cash (of which Purchaser has^ deposited with the undersigned Agent $1,000.00 as part payment, receipt of which is hereby acknowledged by said Agent); the sale of the above described property is contingent on the sale & closing of such on property located at 1804 W. 36th St., Austin, Texas. Possession to be given on closing of sale. This sale to be consummated within 60 days.