In a suit for the return of earnest money, defendant builder appeals from the denial of his motion for summary judgment.

Defendant is relying upon a clause in a contract made in November which provides for the forfeiture of the earnest money in the event of a repudiation or anticipatory breach by the buyer. Assuming without deciding that the buyer did repudiate this contract, there is a genuine issue on several material facts concerning the existence and breach of a prior, unrescinded contract between these parties and the fraudulent procurement of the November contract.

The trial court did not err in denying defendant's motion for summary judgment.