dissenting.
Mrs. Gilbert’s failure to provide the additional $10,000 capitalization to Benton Brothers Drayage and Storage Company prior to its becoming insolvent defeated the purpose of the parties in entering into the contract. Consequently, in my opinion, the trial court erred in ordering the cancellation of the secondary security deed, and in enjoining the foreclosure thereof. However, I think that the appellant should have been ordered to make restitution to the appellee in the amount of the $25,000 expended by appellee’s privy, Mrs. Gilbert, in her partial performance of the agreement with the appellant to cancel the secondary security deed. Stated somewhat differently, the appellant made an offer to cancel the secondary security deed based upon the provision of $35,000 capitalization to the corporation, and, since only $25,000 was paid into the corporate coffers, the acceptance of this offer was only partially performed. Consequently, I would reverse the judgment, but on the condition that such restitution be made.
I am authorized to state that Justice Smith and Justice Weltner join in this dissent.