concurring in part and dissenting in part:
I concur with sections I and IIA (Holl-ingsworth) of the majority opinion. Also, I agree with all of section IIB (Higbie) except for the inclusion of interest on the balance of the purchase price (the cash, and the new note).
Higbie, as seller of the Moffat County ranch, was entitled to damages from Johnson, the defaulting purchaser, under the same measure as was applied in favor of Hollingsworth on the Lincoln County property. Therefore, Higbie was entitled to receive from Johnson an amount equal to the contract price less the fair market value as *1152of date of breach, plus the out-of-pocket expenses which Higbie would not have incurred but for the breach, including interest on the existing encumbrance, interest and costs and attorney fees on a new loan obtained to make thé required principal payment on the old loan, insurance, taxes, and lease payments, less oil and gas lease payments.
The court awarded the above referred to out-of-pocket expenses, but also, erroneously, allowed the abstracting costs and attorney fees incurred in preparation for the 1976 closing. Then, instead of granting the difference between contract price and market value, as to which there was evidence on which a finding could have been made, the court awarded interest on the balance of the purchase price (the cash and new note) Higbie would have received had the deal gone through — even though he still owned the property. From the date of the breach, Higbie was entitled to possession. In his complaint, he asked for rental from Hollingsworth and an order requiring him to vacate the premises. Hollingsworth refused to vacate or to pay rent and continued to leave his livestock there and to live on the property until he eventually became the owner. He did not ask for rent from Johnson, and was not entitled to it.
Even if the amount of the interest on.the balance of the purchase price for the period between the aborted closing date and the eventual sale was the equivalent of the reasonable rental for that period, see F. Poss Farms, Inc. v. Miller, supra, it was Hollingsworth, and not Johnson, who was in possession and had the benefit of the use of Higbie’s property. Therefore, not Johnson but Hollingsworth, if anyone, was liable to Higbie for this rental.1 Insofar as Johnson was concerned, the Moffat County property was available for use or other disposition by Higbie on the date of the breach.
Since the aggregate of the contract price/market value differential and the out-of-pocket expenses will be less than the amount of the judgment in favor of Higbie, that judgment should be vacated and the cause should be remanded for the entry of a new judgment in favor of Higbie consistent with this dissenting opinion.
. The trial court dismissed Higbie’s claim for rent against Hollingsworth. Higbie did not appeal this judgment.