Fry (P) made an offer on a home through George (D) a real estate broker. P sent a check for $4,250 and his offer conditioned upon obtaining a $20,000 loan at 5% for 20 years. The owners of the house accepted the provisions and agreed to pay D a 5% commission or one-half of the deposit if it was forfeited by P. P was told that the required loan was available at Western Mortgage Co. if he would just file the application papers. P never filed the papers. P had applied to two banks, and they had rejected his application. P then wrote to the owners to rescind the deal. The Millers sold their house to the Rothschilds for $40,375 without a broker's commission but with the inclusion of $937.50 worth of personal property. An attorney was employed for $250 to assist in the closing. P sued D for the deposit. The trial court took the $937.50, $250, and $2,125 in broker commission and awarded P the balance remaining from the deposit, $937.50. P appealed.

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