(dissenting). The opinion of Justice Birdzell treats the contract involved as continuing for the period prescribed. Right of recovery is denied because of the failure of the drivers to substantially perform the contract during the period of time that the school was closed.
In this case no breach of the contract on the part of the drivers is presumed or proved. Confessedly, the failure of the drivers to perform the contract services during the time that the school was closed is due entirely to the action of the defendant. Whatever breach of the contract occurred was the act of the defendant. The case was tried and submitted upon the theory that the drivers were entitled to recover, if at all, the contract rate stipulated. In this regard, I am of the *453opinion that there was error. The record justified the finding of the jury that the closing of the school operated as a breach of the drivers’ contracts. Upon the holding in the opinion referred to, the breach of the contract by the defendant leaves the drivers without right to recover the detriment, if any, they have suffered. In this case the statutory rule permitting the party aggrieved to recover the detriment proximately caused through the breach of a contract should be applied. Comp. Laws 1913, § 7146. See McLean v. News Pub. Co. 21 N. D. 89, 129 N. W. 93, and note in 6 L.R.A.(N.S.) 94. The judgment should be reversed and a new trial ordered.