Michalsky v. Pisano ( 1916 )

Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision. 1. Vendor and purchaser, § 305^*—when purchaser entitled to return of earnest money. One who, having contracted for the purchase of real estate, pays to the vendor’s broker earnest money, which is to be applied to the payment of expenses and brokerage, and balance paid to the vendor, is entitled to the return of such earnest money from such broker on failure of the vendor to tender a deed in accordance with his contract. 2. Appeal and error, § 493*—when erroneous judgment against one joint defendant only not disturbed on appeal. Though the rule is that a plaintiff suing two or more on a contract must recover against all or none, a judgment entered against one defendant only in accordance with verdict will not be disturbed on appeal in the absence of an objection thereto in the trial court.