concurring in part and dissenting in part.
I do not disagree with most of the legal principles stated in the majority opinion, but I seriously question that they should totally dispose of this particular case. The Lindbergs continued to live in the house for over a month after the fire before they left because of the action brought by Bishop Ryan to have them evicted. They lived in the house from September through January. It is not clear to me whether or not the trial court considered the $3,000 to be recompense for that period as a matter of equity such as the doctrine of quantum meruit.
It may well be that Bishop Ryan was not entitled to seek the additional $3,000 under the earnest-money agreement because, as a result of the fire, the property was not at the scheduled time of closing in the same condition as contracted for. The Lind-bergs, however, would have us believe that Bishop Ryan intended they should pay the additional $3,000 without ever having the property repaired with the insurance proceeds. Although that is apparently the Lindbergs’ argument, there is no finding to that effect by the trial court and a fair reading of the evidence would not lead to that result. Rather, it appears that Bishop Ryan became concerned that the Lind-bergs, who had already failed to post part of the agreed-upon security, a Cadillac car, did not have sufficient security to pay the $3,000 much less the total amount due at the time of closing. Mrs. Lindberg conceded at trial that they did not have the finances to close on January 1, 1984, as provided in the contract.
If, indeed, the Lindbergs were concerned that the premises would not be restored from the damage caused by the fire and smoke, their continued presence in the residence until they were given an eviction notice raises the question of their waiver of that condition. Although the majority opinion indicates, at footnote 4, that the issue was not raised at trial or on appeal, I am not so convinced. The brief for Bishop Ryan discusses the fact that on January 4, 1984, the Lindbergs paid $2,000 to Bishop Ryan. I believe this does raise the issue, at least on appeal. I confess I am not entirely sure of the theory on which the case was tried or the theory on which the ease was decided. It appears to me there were several issues left undecided. Therefore, although I would reverse the judgment, I would also remand for a new trial under Rule 35(b), N.D.R.App.P., which rule permits us to remand a case to the trial court for determination of issues that have not been tried if such a determination is necessary or desirable to proper disposition of the case on appeal.