Sanderson v. Towne

Per Curiam. In this pro se appeal plaintiffs seek reversal of an order entered for defendant in an action brought by them for recovery of a partial down payment on the purchase of a mobile home. The parties waived formal findings at trial. While this shortage makes appellate review more difficult, it does not preclude consideration, and this Court will examine the evidence to determine whether a given result is supportable. Harrigan v. Harrigan, 135 Vt. 249, 250, 373 A.2d 550 (1977). The term of the agreement that forms the basis of this suit provided that the down payment was “to be returned if financing [was] not available for either party.” The record discloses that plaintiffs in good faith attempted to procure financing from two banks but were denied both times, once orally and once in writing. Since financing, an express condition of the agreement, was not available through no fault of the plaintiffs, performance was excused and the [540] down payment should have been returned. Nebaco, Inc. v. Riverview Realty Co., 87 Nev. 55, 57, 482 P.2d 305, 307 (1971). See generally 18 Williston on Contracts §§ 1968-1972 (3d ed. W. Jaeger 1978). Judgment vacated and judgment entered for the plaintiffs.