(dissenting).
I dissent. The theory of the plaintiffs upon which they went to trial is set out in their Amended and Supplemental Complaint as follows;
“11. That * * * the plaintiff, Kenneth Rasmussen and the defendant, Neal G. Davis met and entered into an oral agreement whereby the plaintiff, Kenneth Rasmussen returned to the defendant, Neal G. Davis, the possession of the real and personal property that he the plaintiff, Kenneth Rasmussen had theretofore received from the *99defendant, Neal G. Davis, except certain farming equipment that had been disposed of by the said Kenneth Rasmussen, and in lieu of returning said personal property, the said plaintiff, Kenneth Rasmussen, delivered to the defendant, Neal G. Davis some hay and sheep which the defendant, Neal G. Davis, accepted in lieu of the farming equipment that was not delivered and in the manner above mentioned the above mentioned contract between the plaintiffs and defendants was rescinded except as to the $8000.00 which the plaintiffs paid to the defendants at the time the above mentioned written contract was entered into.
“12. That the plaintiff, Kenneth Rasmussen and the defendant, Neal G. Davis, agreed that the defendant, Neal G. Davis, should retain sufficient of the $8000.00 to reimburse him for the rental of the premises during the time that plaintiffs had possession thereof and any damage that might have been done to said premises and personal property while plaintiffs were in possession of the same, and that the plaintiff, Kenneth Rasmussen would get in contact with his attorneys in an attempt to get an agreement with the defendants as to the amount of the $8000.00 that was paid on the above mentioned contact between plaintiffs and defendants that should be retained by the defendants as rental and damages.
“13. That the defendants and plaintiffs have been unable to reach any agreement as to the amount of the $8000.00 that should be retained by the defendants and on the contrary, the defendants have refused and continues (sic) to refuse to return- any part of ' the $8000.00 to the plaintiff. That the sum of $2000.00 is ample to reinburse the defendants for the rental of the real and personal property mentioned : in the contract, and for any damage ■ that may have been done to such property during the time the same was in the possession of the plaintiffs.
“Wherefore plaintiffs pray judgment against the defendants for the sum of $6000.00 together with their costs herein expended.” (Italics added,)
In answer to the plaintiffs’ Amended and Supplemental Complaint, the defendants claimed that the written contract “was by the defendants rescinded for the breach thereof by the plaintiffs and the parties agreed, as part of their settlement of their accounts for the damages which defendants had sustained, that defendants should have the right to keep the $8,000 which had been paid.”
The issue between the parties was thus sharply drawn: Did the parties in their settlement negotiations come to any agreement as to the disposition of the $8,000 down payment?
The plaintiffs’ evidence did not support their claim that the parties agreed that the *100defendants should keep sufficient of the $8,-00Q to pay them ' rental1 for the premises during the time that the plaintiffs were in possession thereof and to pay them for any damage inflicted bn the premises by the plaintiffs, and that the balance of the $8,-000 should be returned to the plaintiffs. The testimony of the plaintiff, Kenneth Rasmussen, was to the effect that he and the defendant, Neal G. Davis, settled all their differences except the disposition of the $8,000 down payment; that Davis steadfastly refused to give back any part of the $8,000 and threatened Rasmussen that if he did not move off the farm so that Davis could sell it to another party, Davis would sue him for "a lot more than $8000.”; that Rasmussen insisted part of the $8,000 be returned to him; and that the plaintiffs moved from the farm but made no agreement as to the disposition of the $8,-000 held by the defendants.
The majority opinion holds that because the plaintiffs failed to establish an agreement on the part of the defendants to return the $8,000 or any part thereof to the plaintiffs, the defendants are under no obligation to return it. This holding is bottomed on the erroneous conception that the parties got together and made a so-called rescission of the entire agreement. That is, of course, the defendants’ theory, but in their amended complaint the plaintiffs allege that the parties settled their differences except the disposition of the $8,000. Mr. Rasmussen’s testimony süpports that allegation. According to Mr. Rasmussen, the parties at no time got together and can-celled or “rescinded” the written contract in toto as the majority opinion would lead us to believe. Instead, over a series of conversations, they settled their differences one by one, except the disposition of the $8,000. They agreed that the $5,000 note due on January 1, 1952, should be can-celled ; that the plaintiffs should move from the farm; after considerable negotiation they agreed that the plaintiffs should give the defendants certain hay and sheep for the machinery which the plaintiffs had sold from the farm. Finally, all their differences were settled except the disposition of the $8,000. No agreement in that regard could be reached, and consequently it remained for the trial court to settle. I cannot follow the reasoning of the majority opinion that because the plaintiffs could not prove an agreement on the part of the defendants to return the $8,000, they can now keep it. That cannot be so in the absence of an agreement between the parties to that effect. Since the plaintiffs emphatically denied that they ever agreed that the defendants should keep it, the court erred in dismissing the plaintiffs’ action at the close of the presentation of their evidence.
I would remand the case for further proceedings to determine what part of the $8,-000 the defendants are entitled to retain as damages sustained by them.
WADE, J., concurs with the views expressed in the dissenting opinion of WOLFE, C. J.