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…