Thompson v. Lincoln Ins. Co. , 114 Mont. 521 ( 1943 )

I view the record with different glasses; I see the law in a different light than do my associates concurring above.

By written agreement made on July 30, 1926, and thereafter recorded, Northern States Life Insurance Company, seller, obligated itself to sell to S.E. Brokaw, buyer, and the latter obligated himself to purchase a quarter section of land in Teton county, Montana, owned by the seller. The agreed consideration was $3,000 payable $500 down and the balance in annual installments of $500 each payable by the first day of each November commencing in 1927.

Thus came into being a contract. By it the buyer Brokaw and his successors in interest became obligated to pay the contract price and the taxes, and the seller and its successors in interest became obligated to deliver a deed to the land when the contract price was fully paid. Under this contract the buyer Brokaw entered into possession of the land and continued therein until December, 1930, during which time he paid in principal, interest and taxes under the contract a total of $2,094.24. In December, 1940, the buyer Brokaw died, and about two years later the seller Northern States Life Insurance Company became insolvent. Thus did fate remove from the scene of action the two original contracting parties. They left behind them however the still existing and partially executed contract for deed to the quarter section of land involved.

Upon the death of the buyer Brokaw, his two surviving sisters, the plaintiffs, Mrs. May B. Thompson and Mrs. C.B. Caskey, succeeded to the buyer's interest in the contract and to his equity in the land, and they were duly appointed to administer decedent's estate. After their brother's death plaintiffs paid in interest and taxes under the contract the further sum of $307.99.

Upon the insolvency of the seller, Northern States Life Insurance Company, a receiver was appointed who assigned the seller's interest in the contract and conveyed the seller's interest in the land to the defendant, the Lincoln National Life Insurance Company.

"This court has said that the position of a receiver is no better and no higher than that of an assignee; he occupies a situation not materially different from that of the insolvent prior to the appointment; he is the arm of the court to accomplish, when necessary, the distribution of the assets of the insolvent according to the rights of those entitled thereto." (Aetna Accident Liability Co. v. Miller, 54 Mont. 377, 389,170 P. 760, 763, L.R.A. 1918C, 954.)

Thus, with the original parties to the contract both out of the picture, did the contract survive with the plaintiffs standing in the shoes of their deceased brother, the buyer, and with the defendant Lincoln National Life Insurance Company standing in the shoes of the original seller. By the assignment, which the defendant accepted, was it empowered to collect all the moneys due or to become due and to reap all the benefits that were to accrue under the contract. By the deed to the land, which the defendant accepted, was it empowered to perform and fulfill the contract obligations of the seller and to execute and deliver a proper conveyance of the land upon the payment of the balance owing on the contract.

While it is a general principle that the mere assignment of a contract does not ordinarily operate to cast upon the assignee liabilities imposed by the contract on the assignor in the absence of an assumption of such liabilities, yet the assignee may assume the assignor's liabilities and thus create obligations between him and the other party, and under certain circumstances and conduct the law will imply that the assignee has assumed the contractual obligations of the assignor. "It is not to be inferred from the rule that the assignee of a contract is not personally responsible to the other party for the obligations imposed by the contract on the assignor unless he assumes such obligations, that he may enforce the contract without the performance of the obligations which it imposes. On the contrary, he takes the right with all the burdens to which it was subject in the hands of the assignor, and if he undertakes to enforce the right by an action, he must show that the conditions have been performed either by his assignor or by himself. The assignee is bound by the terms of the contract to the same extent as the assignor." (4 Am. Jur., sec. 104, pages 311, 312.)

As before stated, under the contract for deed herein the deceased buyer's obligation was to pay, — pay the taxes and pay the purchase price installments while the insolvent seller's obligation was to deliver a deed conveying good title when the price was paid.

Immediately upon receiving the assignment of contract and the deed the Lincoln National Life Insurance Company, representing and holding itself out as the owner of both the land and the contract, launched a vigorous campaign to enforce the contract and to collect from plaintiffs, as successors in interest of their deceased brother, the balance owing on the contract. A steady stream of letters commenced pouring in on plaintiffs, all written on the letterhead stationery of the Lincoln National Life Insurance Company, and purporting to have been written by various and sundry officers, department heads, agents, employees and attorneys at law of the Lincoln National. Some of these letters came from the insurance company's office at Fort Wayne, Indiana, while others came from its office at Fargo, North Dakota.

The defendant urged plaintiffs to apply for a Federal Farm Loan for the purpose of obtaining the balance owing on the contract for deed knowing that to obtain such a loan it would be necessary to hypothecate, as security, the very land involved in the contract, legal title to which was then in the defendant Lincoln National Life Insurance Company. Plaintiffs, at the insistence and under the express direction of the defendant insurance company, made application for a Federal Land Bank loan. Numerous delays, due first to one cause and then another, were encountered but the defendant was kept fully advised as to plaintiffs' earnest and untiring efforts to have their application for loan approved and to raise the balance owing on the contract.

On December 17, 1933, defendant wrote Mrs. Thompson: "If your application for a Federal Land Bank loan has not yet been appraised, it is doubtful whether you will get anything done on it this winter. We have a great deal of snow here and I understand that all the land bank appraisers have been called off the job. * * * It would be well for you to write to the Federal Land Bank and urge them to make inspection of your land as the contract will have to be foreclosed unless something definite is done for payment of the delinquent amount due."

On February 8, 1934, defendant wrote and mailed a letter to S.E. Brokaw, whom it knew had then been dead for several years, notifying the deceased that unless he paid the balance due on his contract, it would be declared forfeited effective as of March19, 1934. Of course such notice was idle and ineffective. The dead man could not pay nor act on the notice. "A dead man is not capable of any activity." (Carnahan v. Gupton, 109 Mont. 244,258, 96 P.2d 513, 518.)

On the same date, February 8, 1934, defendant wrote a second letter, which it registered and addressed to Mrs. Thompson as administratrix of the estate of S.E. Brokaw, deceased, advising her that defendant "has elected to declare the said contract forfeited and terminated, effective as of March 19, 1934, unless on or before that date you as administrator or some other person representing the estate of said S.E. Brokaw, deceased, pay or cause to be paid to the undersigned at its home office in the city of Fort Wayne, Indiana, the sum of $1745.00 which is the amount due upon said contract.

"This action is taken by the undersigned as the owner of thesaid premises and the owner and holder of the contract above mentioned." (Emphasis mine.)

On March 1, 1934, Mrs. Thompson in a letter addressed to defendant at its home office in Fort Wayne, Indiana, replied:

"Rec'd your letter stating you are cancelling our contract unless paid on or before March 19, 1934.

"You are doubtless aware we are trying to get a Federal or Commissioner Loan on this land and may not get it completed by that time.

"Some people thinks it helps if the loan company write to the land bank.

"Would you be willing to cut down any on this amount? Many of the creditors are."

To declare the contract forfeited and terminated, the defendant was required to announce its election promptly and to be and remain firm about it. This it did not do. Instead it made a show of indulgence and, to induce plaintiffs to continue in their efforts to raise the money owing on the contract, the defendant held out to plaintiffs the bait that the contract would survive the threatened March 19th deadline and that the money owing under it, if thereafter forthcoming, would be accepted and applied by defendant on such contract.

Before defendant received Mrs. Thompson's above letter and on the same date thereof, to-wit: on March 1, 1934, being threeweeks after the date of defendant's notice of the threatened forfeiture, defendant wrote Mrs. Thompson: "Some time ago you advised us that you had made application for a Federal Loan but at that time no action had been taken on the application. Haveyou any further information regarding this application? If so,advise us as to whether or not the loan has been approved and forwhat amount." (Emphasis mine.)

If defendant really intended to carry out its threat to forfeit on March 19th as announced in its letter of February 8, 1934, why was it thereafter and on March 1st concerned about the Federal Loan to secure which defendant knew the land in question was to be hypothecated?

Again, a week later, on March 7, 1934, defendant wrote Mrs. Thompson from its home office:

"Our mortgage securities in Montana are under the direction of Mr. Andrew McKay, Manager of our office in Fargo, N. Dak., and I am forwarding your letter of March 1st to him in order that hemight assist you with your loan.

"Mr. McKay has handled a good many matters of this character and I know will do anything within his power to be of assistanceto you in your refinancing program." (Emphasis mine.)

If the defendant really intended to forfeit the contract on March 19th, why did it on March 7th talk to Mrs. Thompson about her "refinancing program"?

On March 9, 1934, but ten days before the March 19th deadline, defendant's manager, Mr. Andrew McKay, wrote Mrs. Thompson:

"Your letter of March 1 written to the Home Office at Fort Wayne, has been referred here. Please correspond with thisoffice in the future regarding this loan, as it has been handledby us. "You shouldn't have much difficulty in getting a loan forsufficient amount to pay our indebtedness in full. If you have already submitted your application it is quite likely that you will get an appraisal of the land soon. As soon as you find outthe amount approved you can take it up with us, and we will beglad to cooperate with you in any way we can to enable you torefinance this loan." (Emphasis mine.)

The "indebtedness" referred to is the contract indebtedness. It was regarding this contract indebtedness that defendant represented to plaintiffs it "will be glad to cooperate" to enable plaintiffs "to refinance this loan."

Long after the threatened March 19th deadline had passed, and on April 21, 1934, defendant wrote the plaintiff, Mrs. Thompson:"Have you had any advice from the Federal Land Bank in Spokanein regard to your application for a loan. If no action has yet been taken we should make arrangements for the leasing of the property this year. * * * In the event the Federal Loan iscompleted before the crop is harvested the lease can be cancelled. Please let me hear from you promptly regarding this." (Emphasis mine.)

Here, more than a month after the threatened deadline, was the defendant still considering the contract as in full force and virtue; still willing to permit plaintiffs to mortgage the land for the purpose of obtaining a Federal Land Bank loan; still wanting to know the latest advice from the Bank on plaintiffs' application for a loan and, to encourage plaintiffs and to induce them to continue in their efforts to obtain such loan, holding out the bait for them that, "In the event the Federal Loan is completed before the crop is harvested the lease can be cancelled."

This crop, then growing on the land, being wheat, was to be harvested in the fall to be sure. Mrs. Thompson's son had planted the wheat. He put the crop in at a time plaintiffs were rightfully in possession of the land and he most certainly had the right to harvest his wheat crop, lease or no lease. Plaintiffs had no need for any lease which "can be cancelled" in case "the Federal Loan is completed before the crop is harvested." Plaintiffs, as successors in interest and as administratrices of the deceased buyer's estate, were entitled to possession under the decedent's contract and most assuredly the proffered "lease" could give them no rights that they did not already possess under the contract.

The majority opinion concludes that defendant's numerous references to a crop rental lease which defendant repeatedly requested plaintiffs to sign and return but with which plaintiffs consistently refused to have anything to do, is evidence indicating that "the land contract had been terminated." With this conclusion I cannot agree and I do not view these unsuccessful attempts to prevail upon the representatives of the decedent's estate to relinquish their rights under the land contract and to substitute therefor a so-called "lease" which would bestow on plaintiffs no rights they did not already possess as any evidence whatever of the termination of the contract for deed. On the contrary these endeavors to obtain plaintiffs' signatures to a "lease" rather indicate to me that defendant and its legal staff appreciated the fact that the contract for deed was still very much alive and that to protect defendant against an action for breach it was deemed advisable to attempt a novation which, in law, would effect an abandonment by plaintiffs of their rights under the contract for deed.

The record indicates to me that for the purpose of encouraging plaintiffs to continue after March 19th with their efforts to obtain a Federal Land Bank loan defendant intentionally led plaintiffs to believe, and that plaintiffs did believe, that defendant would wait for the balance owing on the contract until fall when the wheat crop could be harvested, at which time plaintiffs could raise the necessary amount either from the completion of a Federal Land Bank loan, or from the marketing of the crop or from any other source and that defendant would accept the money and deliver to plaintiffs a deed for the land. On the other hand, should the balance owing on the contract be not forthcoming then, if defendant had in its possession an executed "lease" it need only say: "Presto!" and behold, the contract, with all the obligations embodied therein would disappear and vanish into thin air, nunc pro tunc as of March 19th, and defendant could then produce from its files the signed "lease" which it would contend evidences "that the land contract had terminated" and that in its stead there was an entirely new deal represented by the "lease." However, plaintiffs steadfastly declined to sign the proposed "lease" and they based their rights solely upon the original contract for deed which continued in effect.

"Time being of the essence, if vendor elects to enforce forfeiture he must do so promptly, and any indulgence upon his part will ordinarily be held to operate as a waiver of such right." (1 Jones, Cyclopedia of Real Property Law, section 372, page 539.)

"Waiver may be by * * * unequivocal `acts and demeanor' affording reasonable and proper inducement for the purchaser in reliance thereon to alter his course as to strict and punctual compliance, either in advance of or after the prescribed time. * * * The essentiality of time may be waived by consent or acquiescence of the parties; by their conduct, such as by the extension of the time for performance — since one party cannot use his own indulgence as a trap to catch the other party; by recognizing the contract as still in force, after which neither party can terminate the agreement except upon reasonable notice; * * * by vendor's request, after purchaser's default, that purchaser refund taxes paid by vendor; by suing for the purchase money." (1 Jones Cyclopedia of Real Property Law, section 373, page 540, 541.)

Clearly, by its conduct, the defendant waived the requirement that time shall be the essence of the contract and it reconsidered and abandoned, unexecuted, its threat to declare the contract forfeited as of March 19, 1934.

On June 12, 1934, the defendant wrote Mrs. Thompson: "We havemade arrangements for the sale of this property to Mr. Luinstra and he will make his own arrangements for the summer fallowing to be done on the land this year.

"We herewith enclose a new lease, covering the 71 acres which you have seeded to wheat. Will you please sign the lease in the places marked and return to us promptly?" (Emphasis mine.)

Thus did defendant, the Lincoln National Life Insurance Company, breach the contract and repudiate its obligations to plaintiffs by conveying the land to Jacob Luinstra, thereby rendering it impossible for it to deliver deed and a good marketable title to plaintiffs. For its own wrongful conduct the defendant most certainly is answerable. It had encouraged and urged plaintiffs to continue with their efforts to raise the balance owing on the contract. It had agreed to an extension of the time of payment. It had given plaintiffs to understand that it would accept the money from them from any source up to such time in the fall as the wheat crop could be harvested and marketed. It had no right, thereafter and before the time so agreed, to summarily "deal out" the plaintiffs to whom it was so obligated and to "take on" the stranger Luinstra to whom the defendant insurance company was not theretofore obligated in any manner.

The $2,402.23 paid by the deceased buyer and his successors under the contract gave plaintiffs rights and equities not enjoyed by the stranger Luinstra. No attempt is here made to hold the defendant insurance company answerable for any conduct or shortcomings of the insolvent seller. The seller and the buyer got along all right until the latter died. Thereafter the original seller and the plaintiffs handled their business in a satisfactory manner. It was not until the seller had become insolvent and had passed out of the picture that trouble arose. This controversy is attributable entirely to the acts and conduct of the defendant assignee, the Lincoln National Life Insurance Company, which on April 21, 1934, and long after the threatened deadline, extended plaintiff's time to pay the balance due on the contract "until the crop is harvested" in the fall. It was the defendant assignee who made the deal with Luinstra. It was the defendant assignee, not the assignor, who repudiated the extension of time which it had theretofore granted plaintiffs. It was defendant assignee, not the assignor, who openly and unconditionally refused to perform and who asserted that after March 19th there no longer existed any contract to perform. It is this conduct of the defendant assignee of which plaintiffs here complain and it is for the detriment occasioned by such conduct on the part of defendant assignee that it is answerable to the plaintiffs in damages.

While defendant alleged in its answer that the deed of conveyance which it executed and delivered to Luinstra "was subject to the rights of the parties then in possession, and conveyed only the right, title and interest of the defendant" yet it is quite significant that at the trial defendant wholly failed to produce either the original deed to Luinstra or a copy thereof and there is no competent proof to establish the above allegation or to establish the true facts. It is certain that the defendant insurance company was in no position to accept $1,600 from Luinstra in August and then in the following month of September to accept from plaintiffs the balance called for by the Brokaw contract. Defendant could not convey a good marketable title to Luinstra in August and then in September convey to plaintiffs the title called for by the Brokaw contract.

Furthermore, defendant, in its letters of December 26, 1934, and of January 8, 1935, hereinafter set forth, took the position plaintiffs had no contracts; that such rights as plaintiffs theretofore had were regularly cancelled March 19, 1934, after adequate notice. In these two letters defendant refused to recognize that plaintiffs had any contract or that defendant was in any wise or manner obligated to plaintiffs, after March 19th. This doubtless was defendant's position when it delivered the deed to Luinstra, otherwise Luinstra would not have paid over the $1,600 to defendant. Such position and such conduct gave rise to this lawsuit. Defendant in its transaction with Luinstra neither protected nor recognized the rights of plaintiffs under the Brokaw contract and, in its transactions with plaintiffs defendant declined to recognize either contract rights in the plaintiffs or contract obligations on the part of defendant.

On September 20, 1934, plaintiffs wrote defendant at its home office at Fort Wayne, Indiana: "We are prepared to make final payment on land bought on contract deed from Northern States Life Insurance Co. Please send deed." The defendant did not forward the deed. It did not reply to the letter.

On December 10, 1934, Mrs. Thompson as administratrix of the Brokaw estate again wrote defendant: "I wrote you about two months ago that we were ready to make final payment on the NW 1/4 32-24-3W and to please send deed but have not heard from you."

On December 26, 1934, the defendant wrote: "Dear Mrs. Thompson: We have your letter of December 10th, and regret to say that you have delayed so long with this matter that we areunable to reinstate the contract which was regularly cancelledmany months ago and was only cancelled after adequate notice had been given you and you failed to take any action to preserve the contract." (Emphasis mine.)

On January 8, 1935, the plaintiff Mrs. Thompson again wrote the defendant: "Your letter of Dec. 26th, states we took no action to preserve the contract after notice of cancellation was given but we did and was granted until harvest to completeloan and wrote Sept. 20 that we were ready to make final payment and to send deed. I can't understand why you were not willing to grant us the same liberal terms you were others."

On January 22, 1935, defendant replied: "We have your letter of January 8th, 1935. You seem to be under the erroneousimpression, although the contract was cancelled March 19th, 1934,that you had until Fall of 1934 to resurrect the contract. At notime did we state to you or any one else that this was the case. We wrote letters to you and the Farm Board prior to March 19, 1934, in which we expressed the hope that you would get your loan closed prior to March 19, 1934.

"You did not get your loan in time to save your contract and it matured on March 19th, 1934. Also, we were informed by the Farm Credit Administration, Washington, D.C., that your loan was rejected. As far as we are concerned there is nothing more to besaid about the matter and it will be unnecessary for us to answer any further letters." (Emphasis mine.)

Plaintiffs were and had been under the impression that they "had until Fall of 1934" in which to pay the balance owing on the contract and this was not an "erroneous impression." It was a true and correct impression gleaned from defendant's correspondence with and conduct toward plaintiffs. It was this very "impression" that defendant sought to, and that it did, convey to plaintiffs. On this correspondence and conduct plaintiffs relied, as was their right.

The majority opinion comments on the fact that no money was actually tendered and that plaintiffs merely wrote defendant expressing a readiness to pay. Under the circumstances above recited, the law does not require that plaintiffs make an actual tender of the money. The law says:

"Where vendor openly and unconditionally refuses to perform, the purchaser is excused from making a tender. So, where vendor's conduct amounts to an anticipatory breach of the contract, as where he disables himself from performing by conveying or encumbering the property to a third person, or where he is thrown into bankruptcy before the time for performance." (1 Jones, Cyclopedia of Real Property Law, Section 277, page 408.)

"If the vendor sells the property to a third person wrongly and not as the result of oversight or mistake, he is liable to the purchaser for the price received, even though he recaptures the title and is able to fulfill the contract. The purchaser has an absolute option to demand the proceeds or the property." (1 Jones, Cyclopedia of Real Property Law, Section 415, page 610.)

Defendant sought to avoid the waiver of the notice of forfeiture and other consequences resulting from its conduct and from its letter of April 21, 1934, to the plaintiff Mrs. Thompson, by the weak and idle contention that the writer of the letter, Mr. Andrew McKay, the manager of defendant's office in Fargo, North Dakota, had no authority to grant plaintiffs an extension of the time of payment but that his agency was limited to that only of a collection agency. The majority opinion herein refers to Manager McKay as "defendant's collection officer at Fargo, North Dakota, whose authority extended only to the making of collections and not to making or alteration of contracts." The record indicates that by its own conduct is the Lincoln National Life Insurance Company estopped to deny either the authority or the agency of its manager McKay herein. Defendant held Manager McKay out as its authorized agent in "handling the deal."

Mrs. Thompson's letter of March 1, 1934, addressed todefendant at its home office at Fort Wayne, Indiana, was by thehome office forwarded to Mr. McKay for reply. The home office by its letter to Mrs. Thompson of March 7, 1934, and Mr. McKay by his letter to Mrs. Thompson of March 9, 1934, both advised Mrs. Thompson that Mr. McKay was handling the deal and that he was the proper person with whom to correspond "in the future regarding this loan." On March 9, 1934, Mr. McKay wrote: "Your letter of March 1, written to the home office at Fort Wayne, has been referred here. Please correspond with this office in the future regarding this loan, as it has been handled by us." Certainly by such conduct is the defendant estopped from denying either the authority or the agency of its manager, Mr. Andrew McKay of the Fargo office.

Plaintiffs were agreeable to and would have paid the defendant the sum of $1,725 and interest thereon from March 19, 1934, being the balance owing on the contract, and also the delinquent taxes amounting to $119.64, making a total of approximately $1,900, had defendant waited till the fall harvest. The defendant, however, apparently, was agreeable to dealing with the first stranger who came along and, on August 24, 1934, it gave Luinstra a contract to purchase the property for $1,600, being at least $300 less than defendant and its policy holders would have received had it kept faith with plaintiffs and waited but a few days for the wheat crop to be harvested and sold.

The defendant failed in its obligation to plaintiffs. For the detriment thereby occasioned the defendant is answerable. The measure of damages is prescribed in section 8672, Revised Codes of Montana, which provides: "The detriment caused by the breach of an agreement to convey an estate in real property is deemed to be the price paid, * * * with interest thereon; but adding thereto, in case of bad faith, the difference between the price agreed to be paid and the value of the estate agreed to be conveyed, at the time of the breach, and the expenses properly incurred in preparing to enter upon the land."

The majority opinion contains a number of citations having to do with specific performance. This is not such an action and such authorities are foreign to the issues here involved. While plaintiffs could have sued for specific performance they did not do so. Instead they elected to sue for damages for breach of contract as was their right.

The majority opinion states that the contract for deed was assigned to defendant "without any special agreement by defendant to assume the vendor's obligation" thereunder. What of it? Why should there be "any special agreement * * * to assume the vendor's obligations" when the law itself imposes upon the assignee who seeks to enforce such a contract the obligations thereof. Qui sentit commodum sentire debet et onus. "He who secures the benefit ought to assume the burden." This ancient maxim of the law has been incorporated into the codes of our state by legislative enactment. Section 9068, Revised Codes, provides: "In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any set-off or other defense existing at the time of, or before, notice of the assignment * * *." An exception to this rule is made in the case of negotiable instruments as the statute provides: "* * * but this section does not apply to a negotiable promissory note or bill of exchange, transferred in good faith and upon good consideration, before maturity."

"A thing in action is a right to recover money or other personal property by a judicial proceeding." (Sec. 6804, Rev. Codes.) The contract for deed so assigned to defendant is a thing in action and under the law, (sec. 9068, supra), the assignee took same subject to all the equities to which it was liable in the hands of the seller or its receiver. In other words, when one voluntarily accepts anything which he knows to be subject to a duty or charge, it is only rational to conclude that he means to take such duty or charge upon himself and the law may imply a promise to perform what he has so voluntarily taken upon himself. Thus it is well settled that where, as here, the assignee claims the fruits of the contract he will be held to have impliedly assumed its burdens. (Corvallis A.R.R. Co. v.Portland E. E.R. Co., 84 Or. 524, 163 P. 1173; McGill v.Baker, 147 Wash. 394, 266 P. 138; Atlantic N.C.R. Co. v.Atlantic N.C. Co., 147 N.C. 368, 61 S.E. 185, 23 L.R.A., (n.s.) 223, 125 Am. St. Rep. 550, 15 Ann. Cas. 363; ImperialRefining Co. v. Kanotex Refining Co., 8 Cir.,29 F.2d 193. Compare Bach, Cory Co. v. Boston M. ConsolidatedCopper Silver Min. Co., 16 Mont. 467, 41 P. 75.) "The assignment by the vendor usually carries with it the obligation of assignor to the purchaser." (8 Thompson on Real Property, Perm. Ed., sec. 4568, page 502.)

No prejudicial error appears in the record. The defendant refused to perform its obligation to plaintiffs. Thereby plaintiffs suffered detriment. The judgment of the district court awarding damages to plaintiffs appears to be warranted by the facts and the law and I think it should be affirmed.

MR. JUSTICE ERICKSON concurs in the above dissenting opinion of MR. JUSTICE ADAIR.

Rehearing denied June 25, 1943.