Opinion
45491.
SUBMITTED SEPTEMBER 15, 1970.
DECIDED SEPTEMBER 30, 1970.
Action to recover earnest money. Houston Superior Court. Before Judge Culpepper.
Spencer Smith, Henry G. Smith, Jr., for appellant.
Aultman, Hulbert, Buice Cowart, Tom W. Daniel, Lawrence C. Walker, Jr., for appellee.
In a suit for the return of earnest money, defendant builder appeals from the denial of his motion for summary judgment.
Defendant is relying upon a clause in a contract made in November which provides for the forfeiture of the earnest money in the event of a repudiation or anticipatory breach by the buyer. Assuming without deciding that the buyer did repudiate this contract, there is a genuine issue on several material facts concerning the existence and breach of a prior, unrescinded contract between these parties and the fraudulent procurement of the November contract.
The trial court did not err in denying defendant's motion for summary judgment.
Judgment affirmed. Deen and Evans, JJ., concur.