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Rosens (P) agreed to purchase the Luttingers' (D) premises for $85,000. This was subject to the condition of P obtaining a first mortgage from a bank or lending institution in the amount of $45,000 for a term of no less than 20 years at an interest rate not exceeding 8.5% per annum. P agreed to use due diligence in seeking the financing but applied to only one bank because that was the only one lending as much as $45,000 on single-family dwellings. The agreement called for a refund of P’s deposit if the loan could not be obtained. The bank would not commit to an interest rate lower than 8.75%. D's attorney offered to make up the difference between the rate offered by the bank and the 8.5% rate provided for in the contract by lowering the purchase price. P refused and sued for a refund of their deposit. D claimed that P failed to use due diligence to get the loan. The trial court rendered judgment for P and D appealed.

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