[File No. 5917.]

#### ANNIE LACEY, Appellant, v. SECURITY FINANCE & REALTY COMPANY, and M. B. Witt, Respondents.

(237 N. W. 655.)

Opinion filed July 6, 1931.

*E. A. Weslon,*for appellant.

*J. E. Hendrickson,*for respondent.

*148Biedzell, J.

This is an action by tbe plaintiff to recover from tbe defendants $100 earnest money-wbicb bad been paid as a part of a proposal by tbe plaintiff for tbe purchase of a bouse from the defendants in tbe city of Fargo. The bouse was owned by one Lemna and was purchased by tbe plaintiff through a real estate agent. Tbe cause was tried in tbe district court of Cass county, tbe jury rendering a verdict for tbe plaintiff. Tbe court later granted tbe defendants’ motion for judgment notwithstanding tbe verdict and tbe instant appeal is-from such judgment. Tbe principle contention of the plaintiff is that there is evidence to support tbe verdict. Tbe evidence relied upon is to-tbe effect that tbe money was paid to tbe defendant Witt, who was acting for tbe Security Finance *&*Realty Company, with tbe understanding that it was to be repaid to tbe plaintiff if tbe defendants did not succeed in obtaining tbe bouse in question upon tbe terms mentioned in tbe proposed agreement, and that the evidence shows that tbe defendants were unable to obtain a transfer to tbe plaintiff upon these terms but that tbe plaintiff ultimately acquired title through tbe intervention of one Watkins, another agent. From this it is argued that there was both a failure of consideration, inasmuch as tbe earnest money was not applied upon the cash payment as agreed, and a breach of tbe express promise to return tbe money upon tbe defendants’ inability to perform. If we may properly interpret tbe evidence in tbe record as substantially tending to establish these ultimate facts, tbe evidence would, of course, support tbe verdict. Such facts will doubtless find support in tbe record if a partial view only be taken, but when all the testimony is considered we think it does not tend substantially to support tbe plaintiff’s view.

In tbe spring of 1930 tbe plaintiff desired to purchase a bouse in Fargo. She availed herself of tbe services of tbe defendants who showed her different properties. Under date of April 29th she signed a proposal for tbe purchase of tbe property briefly described as No. Ill Fifth Street North for a consideration of $5,500, proposing to pay $2,000 cash, tbe balance of $3,500 to be secured by a mortgage on the property, her offer to be accepted on or before tbe 10th of May, 1930. Tbe proposal recited “I hereby band you tbe sum of $100 as earnest-money wbicb is to be deducted from the cash down payment.” Tbe evidence shows that Watkins, another real estate man, also showed her *149this property and that the plaintiff went to the office of her attorney and after some negotiation in which the attorney, the plaintiff, Watkins and the defendant Witt took part she closed the deal, accepting conveyance from the owner Lemna. Her earnest money payment was known to all the parties at the time. The price and terms quoted by Watkins were the same as contained in her proposal to the defendants and the deal was closed on the basis of $5,400. Thus the plaintiff received the benefit of the $100 payment. We think the record indisputably shows this to be the fact. The plaintiff, referring to the manner in which she had received the title to the property in question and the terms, testified as follows:

> “Q. This transfer, and the whole deal was closed within ten days after you signed this agreement (her proposal to purchase), was it not ? A. I think so.

> Q. And the price that you had gotten from Mr. Witt *or anyone else*who had this listed for sale was $5,500 ? A. Yes.

> Q. And the price that was quoted you by Mr. Witt of the Security Finance & Realty Company was $5,500 ? A. Yes.

> Q. And you were to pay $2,000 cash; was it not? A. Yes.

> Q. And assume a mortgage bn the property? A. Yes.

> Q. Of $3,500? A. Yes.

> Q. And you were to have, of course, clear title ? A. Yes.

> Q. Within ten days of the making of this agreement that is just what took place, this Mr. Lemna deeded to you, did he not? A. Watkins.

> Q. Watkins didn’t own this property? A. No.

> Q. The deed is from’ Mr. Lemna to you ? A. Yes.

> Q. And it carries out the exact terms and conditions as set out in this agreement, isn’t that true? A. Yes.

> Q. And you paid him *the balance*of the purchase price? A. Yes.

> Q. $5,400? A. Yes.”

She then testified that she did not deduct the $100 she had paid the defendant Witt but that she nevertheless paid $5,400. Watkins testified that the price he quoted Mrs. Lacey was $5,500 and when asked if the consideration was $5,500 he' said, “Well the consideration that *150was asked her was $5,500, but the consideration we sold it for was $5,400.”

In light of the plaintiff’s testimony and of the dispute existing between Watkins and Witt, Watkins’ statement that “the consideration *we*sold it for was $5,400” is a recognition that since the plaintiff had already paid $100 toward the purchase price to another she should not be required to pay it a second time. There is in this record no evidence of any contract whereby Mrs. Lacey was to become the owner of the property in question for a price less than $5,500. The evidence shows, that she obtained the property for this price which includes the $100' in question. In other words, the evidence shows that the earnest money payment which was to be applied to reduce her cash payment was in fact so applied. Hence, it shows that she has no cause of action for its recovery.

The judgment appealed from is affirmed.

Ci-eristiaNSOw, Oh; J., and Nuessle, BubR, and Buejee, JJ., concur.