(dissenting): I dislike to dissent without having time to develop my reasons therefor, but I have only time to give one. of them in substance. I am of the opinion that the rule of law followed in the court’s opinion as to the necessity of complete restitution is not controlling in the present case. On cross-examination of the plaintiff, counsel for the defendants also developed that the plaintiff on the same day immediately after he discovered that the tenant had not sold the hay to a third person, filed an action before a justice of the peace against the tenant, in which action the plaintiff sought to recover the value of his one-half of the hay for the same reasons set forth in the court’s opinion. In that action the plaintiff offered to give the tenant credit for payment of the $45. The cross-examination also brought out that the plaintiff at the same time filed another action against the tenant on a verified account for $177.65. The law does not require a first party to offer money to a second party when the first party claims the second party owes the first party money in excess of the amount involved in the tender. The doctrine of refund is not technical but equitable. It does not require a man to be impractical. (See 12 Am. Jur. 1033, § 451, notes 11, 12, 13.)