(concurring specially).
I would point out to the Bar, which might believe that the instructions in this case are approved by us, that in my opinion the instruction quoted in the majority opinion is defective because it fails to include in the definition of “mistake of fact” the words “not caused by the neglect of a legal duty on the part of the person making the mistake” which are part of the statutory definition (Sec. 9-03-13, N.D.C.C.). However, this omission was not pointed out to the trial court and was therefore waived. The quoted language may be vital in some cases. See Security State Bank of Wishek v. State, 181 N.W.2d 225 (N.D.1970).
I cannot concur with those portions of the opinion which state or imply or assume for the purpose of argument that a real estate agent who finds a buyer, no matter how slight the effort involved, is not prejudiced by the rescission of his contract, or reaps an unconscionable advantage if he receives his commission, or is entitled to his commission only if the sale is consummated, or has not parted with anything of value.
Further, I believe the allowance of amendments to pleadings is a matter of discretion with the trial court, and that we should not base our approval of the allowance of amendments in terms of one rule having more weight than another, but simply upon the power of the trial court to exercise discretion in the allowance of amendments. The rules are not in conflict with, but are supplementary to, each other.