c29:No. 6195

HICKENLOOPER, Circuit Judge
(dissenting) .
I regret that I cannot, concur in the above opinion. It is seemingly there conceded that any obligation on the part of the appellant to accept the assignments and to pay the purchase price for the lease in question, was expressly conditioned on the consent of Schulte to the making of the improvements. The obligation of procuring this consent rested entirely with Rudolph & Bauer, and the only consent specified in the contract, conceding that the exchange of communications on April 10 and 11, 1930, resulted in a contract, was an unconditional consent, free from further burden, obligation, duty, or possible liability upon the part of the Nisley Company. This consent was not only not secured, but it was refused by Schulte except and unless the Nisley Company would give a surety company bond that the alterations should he commenced within thirty days of the date of said bond and be completed within a reasonable time, that D. A. Schulte, Inc., should be indemnified against all damage and expense whatsoever “in any wise arising out of such alterations,” and that any liens which might be filed would be discharged within ten days, regardless of the merit of the claim.
The procurement of such a, bond would require the payment of a substantial premium and probably indemnity of the surety company. It would create possible liability on the part of the Nisley Company to respond in damages for loss of trade on the part of Schulte, due to the fact of the making of the alterations in adjoining premises, although without fault or negligence upon the part of the contractors. It might deprive the Nisley Company of the right to eontest claims made without merit. I know of no authority justifying a court in imposing such an obligation upon one who has not contracted to assume it, especially under circumstances where the burden of performance of a condition precedent is expressly placed upon the other contracting party and where it affirmatively appears that the latter has wholly failed to sustain such burden or procure the performance of the condition precedent.

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