Reseña de Justin C. Berger and Kathleen Berger V.

Justin C. Berger and Kathleen Berger V. de St. Louis District Missouri Court of Appeals Resumen del Libro

This case comes to the writer by a recent reassignment. Plaintiffs, who are husband and wife, brought this action for money
had and received to recover the sum of $1650 they paid to defendant as earnest money under a contract for the sale of real
estate. Defendants claim a forfeiture because of plaintiffs' breach of the agreement. A jury was waived, and after a trial
the court entered a judgment in favor of plaintiffs, in general terms, for the amount of the deposit, together with interest
thereon of $149.40, or a total of $1799.40, from which defendant appeals. We affirm. The agreement between the plaintiffs as Purchaser and the defendant as Seller, dated April 29, 1966, contains the provision
that, "This contract is contingent upon Seller being able to obtain 30 year financing for the Purchaser in at least the amount
of $15,750.00 and if such financing cannot be obtained by May 20, 1966, this contract shall be deemed cancelled and all moneys
received from Purchaser hereunder will be refunded, less expense charges incurred attempting to secure financing." Such a
provision in a contract is a condition subsequent, that is, one which by its express terms provides for an ipso facto cancellation
on the happening or non-occurrence of a stipulated event or condition. 17 C.J.S., Contracts, § 339, p. 323; Restatement
of the Law of Contracts, § 250. For examples of a condition subsequent see Darby v. Northwestern Mut. Life Ins.
Co., 293 Mo. 1, 239 S.W. 68, 21 ALR 920; U.S. Casualty Co. v. Kacer, 169 Mo. 301, 69 S.W. 370, 58 LRA 436; Krug v. Bremer,
316 Mo. 891, 292 S.W. 702. Defendant concedes that it did not obtain the required financing for the plaintiffs by May 20,
1966, and it produced no evidence that it had incurred any expense in attempting to secure financing. It follows, therefore,
that by reason of defendant's failure to obtain the stipulated financing for plaintiffs by May 20, 1966, the contract terminated
on that date, and plaintiffs thereupon became entitled to the return of the $1650 they had paid defendant as earnest money.

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