Tauro v. Fitzmaurice

Summary judgment was erroneously entered for the plaintiff (buyer) for (1) rescission of a purchase and sale agreement with the defendants (sellers) and (2) a return of a deposit he had made under the agreement toward the purchase price, on the basis that he had been unable to secure a mortgage loan at the rate of interest set forth as a condition in the agreement. The pleadings, the parties’ motions for summary judgment, and their affidavits (Mass.R.Civ.P. Rule 56[a] and [e], 365 Mass. 824,825 [1974]) raise a genuine question of a material fact as to whether the plaintiff waived this condition, and show that "a precise appraisal of the knowledge and situation of the parties at the time they acted” is required. Nichols v. Cities Serv. Oil Co., 256 F.2d 521 (4th Cir. 1958). Compare Community Natl. Bank v. Dawes, 369 Mass. 550, 558-559 (1976). The defendants were entitled to a trial on the merits. Perry v. Schlaikjer, 5 Mass. App. Ct. 866 (1977).

Judgment reversed.