concurring.
The only issue in this case is whether the fact forty-one months was required to complete the orthodontia contracted for rather than the estimated twenty-four months constituted a breach of contract on Brough-ton's part justifying Riehle's refusal to pay the final $400.00. It did not. Time was not of the essence of the contract and there was neither an express promise nor a guarantee that the services would be completed within twenty-four months.
Riehle makes no claim that the services were defective and no counterclaim for malpractice was filed. Therefore, the discussion in the majority opinion concerning medical or dental malpractice and the elements thereof is irrelevant.
Further, the statement on page 1136, that Riehle produced no evidence that Tammy's grades declined is a gratuitous statement unnecessary to our determination of this appeal. Whether or not such a hap*1138pening would constitute an element of damages in some other action is a question not before us and one upon which we should not comment.
With the foregoing reservations, I concur.