On Rehearing.
[Decided April 5, 1911.]
Per Curiam.The respondents have filed a motion asking for a modification of our former opinion. The grounds relied upon are thus stated in the motion:
“(1) That after the decision of the lower court and pending the appeal, appellants by their own negligence and indifference permitted the contract to which they held an assignment from respondents for the section of land to be forfeited by reason of appellants’ failure to carry out and comply with its terms and conditions.”
At the trial the appellants tendered a reassignment of the contract. The commencement of the action gave notice of their election to rescind. Their failure or refusal thereafter to keep the contract for the Adams county land in force does not affect their right to the relief sought. After the commencement of the action, the parties were required to stand upon their rights as they then existed.
(3) In our former opinion we said:
“The decree will be reversed, with directions to cancel the deed from the appellants to the respondents, and to proceed with the trial of the case in the ascertainment of the appellants’ damages under the issue presented by the pleadings.”
It is said in the motion that the “respondents should not be shut out by a summary order from contesting the various, or at least some of the elements of damages claimed by the appellants,” and that the opinion may mislead the court with respect to the recoverable damages. It is sufficient to say that the trial court will, of course, try the question of damages conformably to the applicable rules of law.