Hoy v. Nichols

The petition of appellant for a rehearing is denied. In that connection, we take occasion to observe that nothing we say here can be taken as in any way extending the effect as a bar of the judgment to be entered below. Such a fear has been expressed, with special reference probably to subdivision 5 of the opinion. Certainly nothing said there can prejudice defendant if later he asserts and can establish the cause of action which he might have if he has been excused from further performance of the contract by a breach thereof by plaintiff. *Page 197