(dissenting).
I agree with my associates on the principles of law announced in the foregoing opinion. I differ with them in applying those principles to the facts of this case.
To be more specific, it is my view that the court may not grant any other or different relief from that specified in the contract unless there be a showing of fraud or bad faith on the part of plaintiff to avoid furnishing title in performance of the contract as written. The court, in my opinion, may not award different relief from that agreed to by the parties simply because there may have been bad faith on the part of plaintiff some place on the horizon, or because plaintiff was not as frank a witness as he might have been.
In other words, it is bad faith in performing the contract with respect to furnishing title and not bad faith in the making' of the contract that authorizes the court to ignore its terms and award specific performance, so far as plaintiff is able to perform with an abatement in the price.
Unless bad faith is shown in avoiding performance- of the contract with respect to title then it must be enforced according to its terms. The contract fixed the rights and remedies of both parties in case plaintiff did not furnish good title. Each party assumed certain duties and responsibilities upon failure to furnish title. The contract, and particularly that part relating to the consequences in case title was not furnished, was for the benefit of both parties and not alone for defendant’s benefit. *293It was plainly intended by the parties that if title to the John Hart land could not be obtained the entire contract was at an end and that defendant should then be entitled to the return of the down payment upon accounting to plaintiff according to the contract.
The parties have the right to stipulate as to the rights and remedies in case title cannot be made good and such provision binds both parties. Mackey v. Ames, 31 Minn. 103, 16 N.W. 541; Schwab v. Baremore, 95 Minn. 295, 104 N.W. 10; Marchman v. Fowler, 145 Ga. 682, 89 S.E. 780; Nostdal v. Morehart, 132 Minn. 351, 157 N.W. 584; 92 C.J.S., Vendor & Purchaser, section 603, page 653; 3 Williston, Contracts (rev. ed.), section 781A, page 2197; 15 Am. Jur., Damages, section 240, page 671; 55 Am. Jur., Vendor and Purchaser, section 567, page 960; Restatement, Contracts, section 339, note g, page 554; Raymond v. McKenzie, 220 Minn. 234, 19 N.W. (2d) 423; McGuckin v. Harvey, 177 Minn. 208, 225 N.W. 19; Brazill v. Weed, 115 Misc. 546, 190 N.Y.S. 43; Elliott v. Henck, Tex. Civ. App. 223 S.W. (2d) 292; Hanley v. Gables Trust Co., 147 Fla. 746, 3 So. (2d) 725; Pinkerton v. Crail, 113 Cal. App. 484, 298 Pac. 532; Riggs v. Gish, 201 Iowa 148, 205 N.W. 833.
I do not find in the record any evidence of collusion on the part of plaintiff and his brother to avoid performance of the contract. Nor do I find any evidence of bad faith on the part of plaintiff in his efforts to secure a deed from his brother.
Defendant admitted that he knew when the contract was entered into that part of the land was in the name of John Hart, plaintiff’s brother. Plaintiff testified that when he made the contract he honestly believed he could get his brother to sell his land.
His positive representation that he didn’t need a power of attorney was predicated upon his belief that his brother would go along with the sale. He did not know at that time that the statement was untrue as stated in the majority opinion, except that he admitted he had no power of attorney. This fact defendant knew. Likewise plaintiff’s testimony that he could not *294sell his brother’s land, as recited in the majority opinion, must be taken in context and read with his entire statement.
This was his testimony:
“Q. You knew you could sell it? A. Well, I knew that I couldn’t sell it. Q. Oh, you knew you couldn’t sell it? A. Not without his consent because it was in his name. ’ ’
To say that plaintiff admitted bad faith is in my opinion unwarranted. Neither can it be said that defendant relied on the representation of authority made by plaintiff.
Defendant’s statement that he took plaintiff at his word is completely and conclusively refuted by the written contract which in substance was that if title was not furnished by March 1, 1951, the down payment should be returned and the transaction, in legal effect, considered as a lease with a division of the crops as stated in the contract and an adjustment for summer fallowing and breaking and pasture rental. .
The written contract cannot be contradicted by parol. First National Bank of Plains v. Green Mt. Soil Conservation Dist., Mont., 293 Pac. (2d) 289; Bauer v. Monroe, 117 Mont. 306, 158 Pac. (2d) 485.
Defendant by the written contract said to plaintiff in legal effect, “I do not rely upon your statement that you have authority to sell your brother’s land. I wish to make it clear by contract that if you do not have authority, and if you do not produce the title by March 1, 1951, I want my money back.” That is what the parties agreed to.
Of course no one may take advantage of his own wrong, and hence if plaintiff is deliberately failing to furnish title when it is within his power to do so then the courts will intercede. But I do not find here any evidence that plaintiff did not proceed in good faith to attempt to obtain a deed from his brother.
After the contract was made plaintiff had a deed prepared and sent it to his brother for signature. This was done on June 16, 1950. His brother refused to sign it stating that he did not want to sell his land. Plaintiff went to Indiana in the fall of *2951950 and spoke to Ms brother about putting his land in on the deal, but was unsuccessful in getting him to do so.
John Hart came to Montana in the fall of 1951 and plaintiff again tried to get him to go through with the deal and he refused to do so. Defendant himself talked with John Hart in the fall of 1951 and was told by him that he refused to convey the land to defendant.
I do not find any evidence of fraud or bad faith on plaintiff’s part in endeavoring to furnish title to the John Hart lands. Just why would plaintiff have made the contract in the first instance if he knew his brother would not go through with it?
The fact that plaintiff did not exert diligence in probating the estate of his mother, Maria Hart, if such is the fact, is of no moment here.
When he was met with the refusal of John Hart to join in the transaction, he was helpless so far as his ability to furnish title in compliance with the contract was concerned.
The fact that about two months after making the contract plaintiff told defendant it looked like, “we was headed for trouble” is just what anyone would have stated after learning that John Hart would not join in the sale. Likewise, the offers to convey, so far as plaintiff was able, do not lend color or substance to fraud as stated in the majority opinion.
He was under no obligation to make any offer. The written contract covered the point and all he had to do was to stand on it so long as he attempted in good faith to produce title to his brother’s land.
Neither do I think that plaintiff’s suggestion to defendant that he up the offer by $2,000 should be considered as a badge of fraud. Plaintiff was simply hopeful that some plan might be worked out to induce Ms brother to join in the sale. He had not discussed this matter with his brother and did not know whether even such an offer would be accepted by him.
I have accepted the rule as stated in the majority opinion, and as announced by many decisions of this court that if there be *296substantial evidence in tbe record to support the findings of the trial court we will not interfere with them.
However, some members of this court think that in an equity case such as this, this court, even though the evidence be conflicting, must and can weigh the evidence from the cold record and determine wherein lies the preponderance of the evidence, unaffected by the determination of the trial court. See Sanders v. Sanders, 124 Mont. 595, 601, 229 Pac. (2d) 164; Miller v. Miller, 121 Mont. 55, 190 Pac. (2d) 72: 12 Mont. Law Review, 36.
If there be any evidence of bad faith on the only point here involved, viz, on the matter of furnishing title to the John Hart land (a point I do not concede) then certainly this case is one where it might be appropriate to exercise the talents of this court in determining whether the findings to that effect are supported by the preponderance of the evidence.
I think the opinion first rendered by this court, which was concurred in by four members of the court with only one member dissenting was correct and that the judgment should be reversed and the cause remanded with directions to take further evidence to the end that an accounting may be had and settled between the parties based upon the contract.