¶1dissenting.
¶2I cannot agree with the construction put upon this contract by the chief justice. As I understand the scope of the opinion, one to whom lots are sold and in whose behalf any part of the consideration is advanced by Helbig, by loan or otherwise, cannot be a “purchaser” under this contract.The record shows that one third of the purchase price of the lots sold to Calhoun was advanced by Helbig, to secure the payment of which Helbig gave, or was to give, a second trust deed upon the lots. If Wolff got the cash payment provided for in the contract, which was one third of the amount of the purchase price, less, possibly, the commission belonging to Helbig, and got, in addition thereto, security for the unpaid portion of the purchase money by a trust deed which was a first lien upon the lots sold, which this contract required, then, if the selling price agreed upon was a fair one, Wolff got exactly what he bargained for, and, as it seems to me, it could make no possible difference to him whether Helbig, or some third party, advanced to the veu*502dee the Cash payment. Wolff’s only additional right under the contract (that of having an adequate security for the two thirds of the purchase money unpaid) could always be preserved by demanding good faith in the sale of lots, and this right could be protected and enforced by submitting the question to a jury. A. sufficient inducement for Calhoun to carry out his contract and pay the balance due to Wolff, and as a further evidence of good faith, is to be found in the fact that his obligation was out to repay Helbig for the cash payment, and it was secured by a second lien upon the lots.
¶3Upon the trial of this case, all the issues of fact, including the good faith of the so-called “ Calhoun deal,” as to whether or not Calhoun was merely “ a man of straw,” and the reasonableness of the price at which the lots were sold to him, were submitted to the jury under appropriate instructions from the court, and these issues of fact were all resolved in Helbig’s favor. In my judgment, this was the proper course to pursue, and thereby Wolff’s rights (if he had any) would be amply protected. The hardship of the construction adopted by the majority of the court is to be seen when it is said that, as the record shows, Helbig has paid the entire consideration of $20,000 to Wolff, and the latter still holds the sixteen lots attempted to be sold to Calhoun.
¶4We cannot close our eyes to the fact that, since the time when Calhoun bought, this property has greatly depreciated in value, and for Wolff now to convey these lots to Helbig, without being required to do more, when the value of the property to be conveyed is much less than it was when Wolff should have conveyed it to Calhoun, and much less than Helbig would thereby and at that time have received, is not such a compliance upon Wolff’s part with his contract as fair dealing and equity demand.
¶5I think the judgment of the district court should be affirmed.