As pointed out in the foregoing opinion, it is stipulated by the parties to this controversy that following the execution and delivery of the deed by which Fred T. Shepherd conveyed the hotel property to the respondents, the respondents repudiated the instrument dated April 5, 1927, being the so-called contract and the instrument which all parties agree, and correctly so, is absolutely void, and, of course, the parties having agreed that said instrument was absolutely void, the case was tried upon that theory in the court below, and must be so treated on this appeal. It is clear that appellant could not possibly either abandon or refuse to perform an absolutely void contract, nor could she be in default under the terms or conditions of an absolutely void contract. Therefore, cases holding that "one who has himself abandoned the contract, or has refused to perform it according to its terms, is not afforded a lien to secure him from loss because of his own breach of the contract" can have no application here.
In Title Insurance Trust Co. v. Ingersoll, 158 Cal. 474,111 P. 360, 366, it was held that whether interest was chargeable against a trustee, and, if any, how much, depended upon what justice, under the particular facts of the case, would require. While there is no unauthorized use of trust funds involved in the case at bar, I am of the opinion that the rule held in the Title Insurance Trust Company *Page 557 case, supra, is sound, and that the charging of interest on trust funds depends upon whether it would be just and fair to do so under the facts of the particular case. And on that point it was held in Perrin v. Lepper, 72 Mich. 454, 40 N.W. 859,904, that "the question of what interest should be allowed, and when rests should be made in computing it, depends so largely upon the circumstances of each case no rule can be fixed applicable in every case." Here, I have concluded, after a careful re-examination of all the facts and circumstances, that justice will be better served by charging interest at the statutory rate on the net balance of the trust funds, to wit, the sum of $7,559.69, from April 2, 1937, the date the respondents went into possession of the hotel, than by computing interest thereon in the manner and as directed in the foregoing opinion. With that modification of the foregoing opinion, the petition for a rehearing should be denied.