WHITTEMORE, J.
This action tried by a judge in the Superior Court without jury in June, 1959, is to recover the sum of $4,500 paid by the plaintiff on September 29, 1956, as a deposit under an agreement of purchase and sale of the premises at 789 Commonwealth Avenue, Newton, owned by the defendant Marion Albion (hereinafter, the defendant). The balance of the purchase price was to be paid
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