(dissenting) :
I dissent. The district court and the majority of this Court have misconstrued the contract under the facts here. If as plaintiff, the purchaser, claims, he has a right to sell the reject gravel; then he must pay for it at the agreed rate, when it was produced — not when and if he ever sells it.
The proof is clear that the seller produced 100,000 yards of gravel for the Great Northern contract. This amount is his own figure. Whether a dispute between Zook Brothers and Great Northern exists as to its delivery should have no bearing here. Thus, no injunction should have issued as plaintiff was in default of payments due.
The majority opinion does, however, grant defendants an accounting with which I agree. The accounting should allow payment to the defendant of the amount due for delivery of gravel to Great Northern. It should also allow in its resolution of the counterclaim a finding that plaintiff did not restore the land to its original condition; and that thus there was a breach of the contract. This latter findings would make the injunction issued improper.
Under the circumstances here, Claver the purchaser, had his own attorney draw the contract. Ambiguities should be interpreted against him. Additionally, it appeared at trial that the purchaser was clearly impeached in his testimony by prior *15inconsistent statements made on depositions, and Ms testimony should not have been accepted. It simply was not credible. The purchaser removed the gravel from its natural state, produced it, and is obligated to pay for it at the agreed price whether he sold it or stored it. I would reverse the judgment and direct further proceedings in accounting to determine the amount owing by plaintiff and the damages, if any, for failure to live up to the terms of the contract.