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Buyer (P) and seller (D) entered a contract for the sale of real property. P gave D a deposit of $10,000. While D was still in possession of the property, and before he had tendered the deed, there was an ice storm, which damaged pecan trees on the land and reduced its value by over $30,000. Before the date set for closing, P informed D that they would not go through with the contract because of the damage to the trees, and demanded a return of their deposit. D informed P that they were ready and willing to perform the contract and refused to return the money. P sued to rescind the contract and recover their deposit. D cross-claimed for damages on P's breach of the contract. The parties' agreement did not allocate the risk of loss.

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