DENECKE, Justice.
Plaintiffs brought an action for damages for breach of an earnest money receipt. The defendants interposed the defense of merger by deed. When the trial court indicated during plaintiffs' case in chief that it was of the opinion that there had been a merger, the plaintiffs moved for a voluntary nonsuit which was granted.
The earnest money receipt provided: "In any suit or action brought on this contract, the prevailing party shall be entitled...
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