The opinion
McHaney, J.,
(dissenting). I concur in the judgment of reversal, hut dissent on the ground that the court erred in refusing to give a peremptory instruction for appellant. I am of the opinion that this case is controlled by the Willey Brothers case, attempted to be distinguished from this case in the majority opinion. I am furthermore of the opinion that the undisputed proof shows that appellees first breached the contract by refusing to pay the amount due the State at the time agreed on, and on demand of both the old and the new board, and that appellant had the right at that time to withdraw the convicts and sue for amount due, and that appellees were not entitled to recoup anything on account of such breach.
The distinction attempted between this case and that of Willey Brothers is one without a difference. If the Willey Brothers case is wrong, it should be overruled, but the majority agree that it is right. I am authorized to state that Mr. Justice Wood and Mr. Justice Humphreys agree with this dissent.