(specially concurring) .
I concur in the holding of the court as limited to the facts here, with one observation :
As Chief Judge Hastings states, plaintiffs did not show here that they would not have relied, had Count I not been dismissed, upon the allegation of the defects found nonexistent in the trial on Count II. In my view, had the showing been made, justice would require remanding for the opportunity to amend Count I. But remand on this record merely to have defendant urge upon the district court a plea of collateral estoppel in defense of plaintiffs’ vital allegation would be an unnecessary delay in passing on a question of law.