dissenting.
I respectfully dissent from the opinion in this case. I have come to the conclusion that the true issues and the pattern for their determination have been obscured in both the opinion of this court which has been rejected and the one which now represents the determination of the case. As I view the situation, the issues are comparatively simple and the pattern for determination plain, and in the light of this and the facts as disclosed by the record and reflected in the two opinions the proper result is not left, as I believe, in doubt.'
For the purposes of this dissent the parties will be referred to herein by their original status in the action in the district court, that is, as plaintiffs and defendant.
The action as instituted was by plaintiffs for damages for breach of contract for the delivery of merchandise. The defense was that the plaintiffs breached the contract which gave the defendant the right to rescind which right the defendant exercised.
In effect the response of the plaintiffs to this was that they did not breach the contract, but that if they did the breach was waived by the defendant. The defendant denied that there was a waiver.
I fail to see how it may reasonably be said that plaintiffs did not breach the contract. To my mind this fact was conclusively established by the evidence. This be*234ing true I cannot escape the conclusion that the defendant had the right to rescind.
Again conclusively, as I see. it, the defendant did exercise its right of rescission. After rescission the parties were in the same status as they were before the contract was entered into except as to their rights and liabilities which flowed from the breach.
After the rescission the plaintiffs had no right or rights against the defendant under the contract and could not thereafter have any' unless and until the defendant waived the breach and its rescission. After breach and rescission and in the absence of waiver the defendant was in a position of freedom to do as it chose with the merchandise which was the subject of the contract. It was free to deal in relation thereto as to all or any part of it with the plaintiffs or any other persons or parties the same as if the contract in question here had never been entered into.
I think that on the record it may be said as a matter of law there was no waiver by the defendant. There is of course evidence to the effect that plaintiffs tried to obtain a waiver. However there is no evidence that the defendant responded to this effort or that it restored the breached and rescinded contract.
If this is true, and I am convinced that it is, the defendant was entitled to a judgment in its favor and the opinion of this court should so indicate.
The two opinions referred to deal at considerable length with the question of consideration for the agreement of February 20, 1947. This question, I submit, is not an issue in this case. I do not wish to be understood as saying that the evidence surrounding the incident has no significance. This evidence is significant, however, only as it throws light, if it does, on the question of whether or not there was rescission and, if so, if there was a waiver of rescission. We are concerned here only with the rights and liabilities under the contract which is the basis of this action and not any other *235contract of a later date. An assumption either that the contract of February 20, 1947, was supported by a consideration or that it was not could not determine any basic issue herein. ,