
    353 P.2d 988
    Frank TAYLOR and Margaret S. Garner, dba Frank Taylor and Garner, Plaintiffs and Appellants, v. Lee L. DAHL, Defendant and Appellant, Peter W. Hummel, Defendant and Respondent.
    No. 9172.
    Supreme Court of Utah.
    July 8, 1960.
    
      Nielsen & Conder, Salt Lake City, Dan-sie & Ellett, Murray, for Lee L. Dahl, defendant & appellant.
    Kirton & Bettilyon,'Salt Lake City, for respondent.
   HENRIOD, Justice.

Appeal from a summary judgment favoring defendant Hummel, alleged purchaser of a house (80% completed) under an Earnest Money agreement where plaintiffs, Taylor and Garner, realtors, claim a commission, and under which defendant Dahl, alleged seller, claims liquidated damages because of Hummel’s alleged failure to complete the purchase. Affirmed. Costs to Hummel, jointly payable by the others.

All parties moved for summary judgment based on the pleadings and depositions of the parties. The court thus was invited to construe the alleged contract in the light of its terms and the depositions of the parties. The controversial part was: “Seller agrees to finish said home and premises in accordance with attached plans and specifications at his expense.”

The depositions disclose that this condition was not performed and that subsequent proffered so-called plans and specifications were unsatisfactory and unacceptable to Hummel. The trial court, therefore, at the request of all parties was not in error in construing the contract as not having been performed by the seller, and in justifying the refus.al of the buyer to go ahead under the contract.

CROCKETT, C. J., and ' WADE, McDonough and callister, jj., concur.  