(dissenting).
I dissent.
I agree that under Idaho law rehabilitation of an insurance company permits its escape from burdensome contracts, but I do not apprehend that it permits the rehabilitated company to continue to receive the benefits of a contract and escape only from its detriments. Yet it seems to be that this is precisely what occurs here.
Here the services for which appellee by its agreement was entitled to a commission had been fully performed. The benefits, subject to the agreed commission, were flowing to the company. The district court ruled that if the rehabili-tator had felt that the price being paid (commission) for these benefits was too high, he could have terminated the whole arrangement, but that the company could not continue to enjoy the benefits and unilaterally relieve itself from the necessity for paying the stipulated compensation. I agree.
Nor do I feel that this claim has been barred by res judicata. It does not appear that the issues presented by this case were ever considered in the state court or resolved by that court. Appellant apparently relies upon the following paragraph in the order of the state court terminating rehabilitation:
"That those acts and actions taken by the Commissioner of Insurance of the State of‘Idaho, and his Deputy, as the acting Rehabilitator, toward removal of the causes and conditions which made the rehabilitation of said insurance company necessary are hereby approved.”
This order was made in response to a report on the rehabilitation proceedings made by the rehabilitator. This report deals at length with the problems encountered in securing refinancing of the company. The cancelling of unprofitable lines of insurance and the discontinuation of writing insurance in certain localities are dealt with in brief and general terms in one paragraph. One sentence of this paragraph reads:
“The company has continued writing insurance both in Alaska and in Germany and the underwriting experience in these two places has been made known to [the new shareholders] .”
Other than this I find nothing in the report which could possibly be said to bear on appellee’s contract.
Nor do I find here a bar by nonclaim. The Idaho statutes do not require the filing of any creditor’s claim during rehabilitation. The only requirement concerning a creditor’s submission of a claim is when the company is being liquidated. I.C. § 41-3507.1
I conclude that appellee is entitled in full to the commissions earned pursuant to its contract and accordingly would affirm the district court upon the appellant’s appeal and reverse upon the ap-pellee’s cross-appeal.
. Now I.C. § 41-3309.