(dissenting). I still think, considering the pleadings and the entire record in this case, that plaintiff’s title and ability to- perform- his contract as agreed was practically and in legal effect conceded in the court below.
I concur in the rule laid down in Sherman v. Beam, cited in the opinion of the majority of the court herein, but do- not think the rule is applicable to the facts of this case. I think the original opinion should be affirmed.