ROONEY, Justice.
Plaintiffs (appellants in Case No. 4963 and appellees in Case No. 5043) brought an action for damages against defendant Mary G. Tice (appellee in Case No. 4963) and defendant Charles T. Tice (appellant in Case No. 5043) founded on fraud and deceit and on breach of contract. Plaintiffs, as buyers, entered into an agreement with defendants, as sellers, for the purchase and sale of an oil and gas and related products business in Jackson, Wyoming, together with all of its assets. Defendant Mary G. Tice was granted a motion for summary judgment on the grounds that there was not a genuine issue as to the material facts concerning her involvement in the transaction and that she was entitled to judgment as a matter of law. The court expressly determined that there was no just reason for delay and directed entry of the judgment. Plaintiffs’ appeal from this judgment was docketed as Case No. 4963. The matter proceeded to trial against defendant Charles T. Tice and the jury returned a $126,000 verdict for plaintiffs. Judgment was entered thereon. Defendant Charles T. Tice’s appeal from this judgment was docketed as Case No. 5043. The two cases were consolidated on appeal.
We will affirm the summary judgment in favor of defendant Mary G. Tice in Case No. 4963, and we will reverse the judgment in favor of plaintiffs in Case No. 5043, remanding the case for a new trial.
Facts necessary for determination of the pertinent issues will be set forth throughout the opinion as required.
CASE NO. 4963
In reviewing an appeal from the granting of a summary judgment and in determining the existence of a genuine issue of material facts, the court must inquire from the viewpoint most favorable to the party opposing [1320]*1320the motion, Timmons v. Reed, Wyo., 569 P.2d 112 (1977). Facts asserted by such party and supported by affidavits or other evidentiary material must be taken as true, Trautwein v. Leavey, Wyo., 472 P.2d 776 (1970), and be given every favorable inference, which may be reasonably and fairly drawn from them, Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976).
Even doing so, the pertinent record does not reflect a controversy with reference to the facts which are material to the claim that defendant Mary G. Tice breached the contract. The material facts concerning this claim are contained in the contract itself and in the addendum to it. There is no dispute over the terms of the contract or of the addendum. Although defendant Mary G. Tice was named in the contract as a party thereto and although she signed it, the addendum, which was also signed by both plaintiffs and both defendants, reflected a recognition that defendant Mary G. Tice was named therein only to assure the conveyance of “free title, unencumbered by any homestead or dower rights or other similar rights by virtue of her marital status.”1 Deposition testimony is to the effect that defendant Mary G. Tice was not a partner in the business and had nothing to do with its operation.
From these facts, reasonable men cannot differ in an understanding from them that additional performance under the contract by defendant Mary G. Tice was not expected. Therefore, she could not act, or fail to act, in breach of its terms.
The minds of the parties met on the thing to be done, i. e., plaintiffs to pay defendant Charles T. Tice and Charles T. Tice to transfer the business and its assets to plaintiffs. Mary G. Tice was without right to any consideration from plaintiffs and did not have ownership of that purchased. Defendant Mary G. Tice could not breach the terms of the contract whether it be determined that a binding contract did not exist as to defendant Mary G. Tice because it lacked consideration to her or because it was not mutual or binding on her, Beatty v. Chicago, B. & Q. R. Co., 49 Wyo. 22, 52 P.2d 404 (1935); Crockett v. Lowther, Wyo., 549 P.2d 303 (1976); Shellhart v. Axford, Wyo., 485 P.2d 1031 (1971), or whether it be determined that the contract was not executory with reference to defendant Mary G. Tice inasmuch as all to be done, or not to be done, by her was already accomplished at the time the contract and addendum were executed. There is nothing in the verified portions of the record to indicate that Mary G. Tice was expected to do more under the contract than required by the addendum.2
With reference to the claim that defendant Mary G. Tice committed acts amounting to fraud and deceit, the pertinent record does not reflect a controversy over the facts which are material to the decision that the claim was unfounded as a matter of law.
Plaintiffs’ claim of fraud is predicated upon three alleged false representations: (1) the gross income of the business; (2) the amount of real property involved in the sale; and (3) the amount of money in the business checking account.
[1321]*1321Any representations, true or false, with reference to the gross income or amount of real property, were made only by defendant Charles T. Tice. The record reflects that defendant Mary G. Tice made no specific reference thereto.
Her comments concerning the third alleged false representation, i. e., the business checking account and her activities with reference thereto, do not amount to that necessary for the essential elements of fraud.
As stated in Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975):
“In Wyoming the elements of an action for fraud have been identified as a false representation by a defendant of material facts which are relied upon by a plaintiff to his damage. Davis v. Schiess, Wyo., 417 P.2d 19 (1966). Earlier this Court developed the concept that the asserted false representation must be one which is made to induce action, and that it must be reasonably believed by the plaintiff to be true. First National Bank v. Swan, 3 Wyo. 356, 23 P. 743 (1890).”
On the morning the contract was signed and the closing took place, defendant Mary G. Tice advised plaintiff Sally J. Reynolds by telephone that there was no money in the company bank account and that a statement for about $3,100 of Phillips Petroleum Company could not be paid. Defendant Mary G. Tice believed this representation to be true, but there was something in the neighborhood of $1,400 in the account. Defendant Charles T. Tice had written a check for $3,000 to defendant Mary G. Tice and one for $500 to himself on the account on the day of closing. At closing, defendant Mary G. Tice paid the Phillips Petroleum Company statement with a check on her personal account.3
If the comments and actions of defendant Mary G. Tice would induce any action by plaintiffs, it would seem to induce them not to sign the contract, rather than induce them to do so. She told them there was no money in the bank account when in truth there was some.
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ROONEY, Justice.
Plaintiffs (appellants in Case No. 4963 and appellees in Case No. 5043) brought an action for damages against defendant Mary G. Tice (appellee in Case No. 4963) and defendant Charles T. Tice (appellant in Case No. 5043) founded on fraud and deceit and on breach of contract. Plaintiffs, as buyers, entered into an agreement with defendants, as sellers, for the purchase and sale of an oil and gas and related products business in Jackson, Wyoming, together with all of its assets. Defendant Mary G. Tice was granted a motion for summary judgment on the grounds that there was not a genuine issue as to the material facts concerning her involvement in the transaction and that she was entitled to judgment as a matter of law. The court expressly determined that there was no just reason for delay and directed entry of the judgment. Plaintiffs’ appeal from this judgment was docketed as Case No. 4963. The matter proceeded to trial against defendant Charles T. Tice and the jury returned a $126,000 verdict for plaintiffs. Judgment was entered thereon. Defendant Charles T. Tice’s appeal from this judgment was docketed as Case No. 5043. The two cases were consolidated on appeal.
We will affirm the summary judgment in favor of defendant Mary G. Tice in Case No. 4963, and we will reverse the judgment in favor of plaintiffs in Case No. 5043, remanding the case for a new trial.
Facts necessary for determination of the pertinent issues will be set forth throughout the opinion as required.
CASE NO. 4963
In reviewing an appeal from the granting of a summary judgment and in determining the existence of a genuine issue of material facts, the court must inquire from the viewpoint most favorable to the party opposing [1320]*1320the motion, Timmons v. Reed, Wyo., 569 P.2d 112 (1977). Facts asserted by such party and supported by affidavits or other evidentiary material must be taken as true, Trautwein v. Leavey, Wyo., 472 P.2d 776 (1970), and be given every favorable inference, which may be reasonably and fairly drawn from them, Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976).
Even doing so, the pertinent record does not reflect a controversy with reference to the facts which are material to the claim that defendant Mary G. Tice breached the contract. The material facts concerning this claim are contained in the contract itself and in the addendum to it. There is no dispute over the terms of the contract or of the addendum. Although defendant Mary G. Tice was named in the contract as a party thereto and although she signed it, the addendum, which was also signed by both plaintiffs and both defendants, reflected a recognition that defendant Mary G. Tice was named therein only to assure the conveyance of “free title, unencumbered by any homestead or dower rights or other similar rights by virtue of her marital status.”1 Deposition testimony is to the effect that defendant Mary G. Tice was not a partner in the business and had nothing to do with its operation.
From these facts, reasonable men cannot differ in an understanding from them that additional performance under the contract by defendant Mary G. Tice was not expected. Therefore, she could not act, or fail to act, in breach of its terms.
The minds of the parties met on the thing to be done, i. e., plaintiffs to pay defendant Charles T. Tice and Charles T. Tice to transfer the business and its assets to plaintiffs. Mary G. Tice was without right to any consideration from plaintiffs and did not have ownership of that purchased. Defendant Mary G. Tice could not breach the terms of the contract whether it be determined that a binding contract did not exist as to defendant Mary G. Tice because it lacked consideration to her or because it was not mutual or binding on her, Beatty v. Chicago, B. & Q. R. Co., 49 Wyo. 22, 52 P.2d 404 (1935); Crockett v. Lowther, Wyo., 549 P.2d 303 (1976); Shellhart v. Axford, Wyo., 485 P.2d 1031 (1971), or whether it be determined that the contract was not executory with reference to defendant Mary G. Tice inasmuch as all to be done, or not to be done, by her was already accomplished at the time the contract and addendum were executed. There is nothing in the verified portions of the record to indicate that Mary G. Tice was expected to do more under the contract than required by the addendum.2
With reference to the claim that defendant Mary G. Tice committed acts amounting to fraud and deceit, the pertinent record does not reflect a controversy over the facts which are material to the decision that the claim was unfounded as a matter of law.
Plaintiffs’ claim of fraud is predicated upon three alleged false representations: (1) the gross income of the business; (2) the amount of real property involved in the sale; and (3) the amount of money in the business checking account.
[1321]*1321Any representations, true or false, with reference to the gross income or amount of real property, were made only by defendant Charles T. Tice. The record reflects that defendant Mary G. Tice made no specific reference thereto.
Her comments concerning the third alleged false representation, i. e., the business checking account and her activities with reference thereto, do not amount to that necessary for the essential elements of fraud.
As stated in Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975):
“In Wyoming the elements of an action for fraud have been identified as a false representation by a defendant of material facts which are relied upon by a plaintiff to his damage. Davis v. Schiess, Wyo., 417 P.2d 19 (1966). Earlier this Court developed the concept that the asserted false representation must be one which is made to induce action, and that it must be reasonably believed by the plaintiff to be true. First National Bank v. Swan, 3 Wyo. 356, 23 P. 743 (1890).”
On the morning the contract was signed and the closing took place, defendant Mary G. Tice advised plaintiff Sally J. Reynolds by telephone that there was no money in the company bank account and that a statement for about $3,100 of Phillips Petroleum Company could not be paid. Defendant Mary G. Tice believed this representation to be true, but there was something in the neighborhood of $1,400 in the account. Defendant Charles T. Tice had written a check for $3,000 to defendant Mary G. Tice and one for $500 to himself on the account on the day of closing. At closing, defendant Mary G. Tice paid the Phillips Petroleum Company statement with a check on her personal account.3
If the comments and actions of defendant Mary G. Tice would induce any action by plaintiffs, it would seem to induce them not to sign the contract, rather than induce them to do so. She told them there was no money in the bank account when in truth there was some. If she had told them there was $50,000 in the bank, when in fact there was only $5,000, the fraudulent element of “asserting a false representation * * * to induce action” may have been met. In other words, the representation made by defendant Mary G. Tice was not material. It was not made to induce action by plaintiffs.
“One of the elements necessary to establish actionable fraud is that the fact which is represented or concealed have [1322]*1322materiality. [Citations.]” McCamon v. Darnall Realty, Wyo., 444 P.2d 623, 625 (1968).
The deposition of plaintiff Montie M. Reynolds reflects that when asked whether or not he considered cancelling the transaction because of the checking account situation, he replied that he did not because “that didn’t seem to be significant to cancel the transaction at that time.”
The record which was before the court when it granted the motion for summary judgment does not reflect any substantiation of the contention that defendant Mary G. Tice was a partner of defendant Charles T. Tice in the business or that she was involved in a conspiracy to defraud plaintiffs. There is nothing in the record to counter the deposition testimony that defendant Mary G. Tice had no interest or association in the business and that it was owned and operated entirely by defendant Charles T. Tice.
Nor is there any indication therein that she took part in the negotiations for sale of the business. Although she may have been present at several of the meetings between plaintiffs and defendant Charles T. Tice during the negotiations period, the meetings were characterized as both business and social. When asked for a statement made by Mrs. Tice relative to the inducement to purchase, plaintiff Montie M. Reynolds, in his deposition, could recall nothing more specific than her comment “that it was a good business and that Chuck had mismanaged it.” In response to the same inquiry, plaintiff Sally J. Reynolds, in her deposition, answered “I can’t honestly say that she did,” and “the only thing I can remember Ty agreeing that Chuck was very poor with books” (Ty is defendant Mary G. Tice). In an affidavit filed in resistance to a motion for summary judgment, plaintiff Sally J. Reynolds stated that Mary G. Tice once said the purchase was “a good deal.” These general comments are not sufficient to substantiate a fraudulent representation. If anything, they would serve to place plaintiffs on guard as to the condition and value of a business that was “mismanaged” by one who was “poor with the books.”
Such general comments are not sufficient as a matter of law to substantiate actionable fraud.
“ * * * [F]raud will not be imputed to a party when the facts and circumstances out of which it is supposed to arise are equally consistent with honesty and purity of intention. This is simply another way of stating the proposition that fraud must be demonstrated in a clear and convincing manner. * * * ” Johnson v. Soulis, supra, 542 P.2d at 874.
Plaintiffs’ reference to the fact that defendant Mary G. Tice might share with her employer in the real estate listing commission from the sale of a third party’s residence to plaintiffs has no relevance or perti-nency to the fraud alleged in this action. It does not have “some legal significance” to the fraud alleged in the sale of the business and its assets by defendant Charles T. Tice to plaintiffs. See Johnson v. Soulis, supra.
There was no error in the granting of the motion for summary judgment in favor of defendant Mary G. Tice.
CASE NO. 5043
Of the several issues presented on appeal in Case No. 5043, we need consider only one inasmuch as we find error in the instructions to the jury relative to damages.
The nature of the evidence and the manner in which it was submitted in this case necessitated careful instructions, both as to the measure of damages and to insure that there would be no duplication of damages. By failing to do either, the possibility, in this ease, for a double damages verdict and for improper determination of damages is sufficient to warrant reversal.
The trial was held to determine the facts involved in two claims for relief, one grounded in fraud and one grounded in breach of contract.
In this particular case, both claims concern identical incidents — alleged false representations of gross income, of amount of real property, and of money in the checking account. The breach of contract claim is [1323]*1323based upon alleged breach of the contract provision against untrue statements or representations (set forth in full in footnote 2). The fraud claim is based on the same alleged misrepresentations. The elements of the two claims are different. The elements for a breach of contract claim consist of a lawfully enforceable contract, an unjustified failure to timely perform all or any part of what is promised therein, and entitlement of injured party to damages. Fowler v. A & A Company, D.C.App., 262 A.2d 344 (1970); Realty Developing Co., Inc. v. Wakefield Ready-Mixed Concrete Co., 327 Mass. 535, 100 N.E.2d 28 (1951); Camenisch v. Allen, 158 Pa.Super. 174, 44 A.2d 309 (1945); Restatement of the Law, Contracts, Vol. 1, § 312 (A.L.I.1932); 17 Am.Jur.2d Contracts, § 441. This is often stated, as the court here instructed, as failure without legal excuse to perform any promise which forms the whole or part of a contract. Friedman v. Katzner, 139 Md. 195, 114 A. 884 (1921). As previously set forth, the elements for a fraud claim consist of (as the court here instructed) a false representation by a defendant of material facts which were made to induce action; which are reasonably believed to be true by defendant; and which were relied upon by him to his damage. Johnson v. Soulis, supra.
The measure of damages for breach of contract is that which would place plaintiff in the same position as he would have been had the contract been performed, less proper deductions. In other words, it is that which will compensate him for the loss which full performance would have prevented or breach of it entailed. Woodburn Brothers v. Erickson, 10th Cir. 1956, 230 F.2d 240; and Zitterkopf v. Roussalis, Wyo., 546 P.2d 436 (1976).
The measure of damages for fraud and deceit is normally measured in one of two ways. It is either the difference between the actual value of the property at the time of making the contract and the value it would have possessed if the representations had been true, or it is the difference between the actual value of the property at the time of making the contract and the value of the purchase money or other consideration parted with for the property. 37 Am.Jur.2d Fraud and Deceit, §§ 353 and 355. Professor McCormick notes the former to be the majority rule and he characterized it as the “loss of bargain” rule. He noted the latter to be the minority rule and characterized it as the “out-of-pocket loss" rule. McCormick on Damages, § 121, p. 448 (1935). A few states have not settled on either position with reference to the two rules but have used one or the other of the rules according to the facts presented and the proof available in each case. See 37 Am.Jur.2d Fraud and Deceit, § 352.4 In this case, an instruction was not given under either rule.
Damages resulting from application of the out-of-pocket loss rule would normally be the same as that resulting from the measure of damages for breach of contract. That resulting from application of the loss-of-bargain rule for damages for fraud could be greater or less than that resulting from the measure of damages for breach of contract. Regardless of which rule was used, double damages could result if the jury was not carefully instructed that such would be improper.
The foregoing evidences the potential problems with reference to jury instruction in this case where there are claims for both fraud and for breach of contract.
In addition to the introductory instruction relative to jury function and trial procedure, which was given at the beginning of the trial, the court gave eight instructions. Two were with reference to damages. They were:
“INSTRUCTION NO. 7
“If you find for the plaintiff [sic] on the issue of fraud then you should award such sums as you believe will fairly and justly compensate them for the damages [1324]*1324you believe they sustained as a direct result of the defendants [sic] misrepresentations.
“In determining plaintiff’s [sic] damages, you should consider any of the following elements of damage that you find were the result of the misrepresentations:
“1. That the representations with reference to the gross income of Tice’s 66 Oil Company were false.
“2. That the representations with reference to the amount of the real estate involved in the sale were false.
“3. That the representations of the amount of money in the business checking account were false.”
“INSTRUCTION NO. 8
“If you find for the plaintiffs on the issue of breach of contract, then you should award such sums as you believe will fairly and justly compensate them for the damages you believe they sustained as a direct result of the breach of contract by the defendant.
“In determining plaintiff’s [sic] damages you should consider any of the following elements of damage that you find were the result of such breach:
“1. Representing the gross income of the business of 1976.
“2. Representing the real property acreage involved in the sale.
“3. Not remitting the monies in the business bank account as agreed upon in the contract of sale.” 5
Defendant Charles T. Tice objected to Instruction 8 as not giving the jury a proper standard by which to measure damages. He also objected to the court’s refusal to give the following instruction as requested by him:
“MEASURE OF DAMAGES
“You are instructed that, if you find that fraud was committed in this case, you will proceed to the matter of the assessment of damages to the Plaintiffs. In assessing damages, you are instructed that it is not material in the matter of damages what the amount of the purchase price of the business as set forth in the contract was. If you find that the Defendants or either of them are guilty, the measure of actual damages, if any, sustained by the Plaintiffs in this case, is the difference between the actual value of the property in question, in the condition it was in when sold on or about May 5,1977, and the value of the same property if it had been, in fact, such property as was stated and represented by Charles T. Tice, Mary G. Tice, or both of them, at the time of the sale.”
In Instruction 7, the court directed an award, if the finding was for the plaintiffs “on the issue of fraud.” In Instruction 8, the court directed an award if the finding was for the plaintiffs “on the issue of breach of contract.” The jury could, and did, find defendant Charles T. Tice liable to plaintiffs on both issues. Under the directions contained in Instructions 7 and 8, it could have awarded damages separately for each finding. Whether or not it did so can be only speculation, but we cannot allow the possibility of an award of double damages. Compensatory damages are just that — to compensate for loss and no more. Hunt v. Thompson, 19 Wyo. 523, 120 P. 181 (1912), reh. den. 19 Wyo. 523, 536, 122 P. 624 (1912); and Douglas Reservoirs Water Users Ass’n v. Cross, Wyo., 569 P.2d 1280 (1977). Double recovery is not favored. Western Nat. Bank of Casper v. Harrison, Wyo., 577 P.2d 635 (1978). Since both claims are founded on the same incidents, compensation for damages under either claim would preclude compensation under the other. Once compensated for loss under the incident, plaintiff cannot be Compensated again for the same loss. To do so, would be to award double damages.
“ * * * [A] duplication of an element of recovery constitutes prejudicial error. [1325]*1325* * * ” LeMieux v. Sanderson, 180 Neb. 311, 142 N.W.2d 557, 561 (1966). “ * * * However, care should be exercised to avoid double recoveries by allowing the same damage twice under different designations. * * * ” Ford Motor Company v. Taylor, 60 Tenn.App. 271, 446 S.W.2d 521, 530; 25A C.J.S. Damages § 181.
The form of special verdict did not rectify the situation. In fact, it could be taken to call for a summation of the amount of damages allocated for each claim.6 It could, therefore, indicate to the jury the propriety of an award for double damages.
The dual and overlapping nature of the claims for relief also pertain to the question as to whether or not a measure of damage instruction should have been given to the jury. In this case, a definite reason exists for a measure of damage instruction. The largest proportion of the evidence presented to the jury consisted of testimony to establish the misrepresentations. This was proper testimony and it included extensive reference to bookkeeping and accounting computations and statements, pro forma cash flow sheets, income tax returns and similar matters. Exhibits were introduced and received which consisted of some of these things. In some instances, there were computations included therein which could be used in proper measurement of damages. In other instances, the computations may have been relevant to establish an element of the misrepresentations, but they would not only be irrelevant to establish the amount of damages, but they would be misleading if used for that purpose. For example, plaintiffs prepared a pro forma statement of cash flow which included an arbitrary 10 percent increase for anticipated increase in business. For another example, the misrepresentation as to the gross income of the business concerned a duplication of gross sales alleged to result from sale of products from the bulk plant to the service stations which were duplicated in the records when the sale of the same products was made from the service station to the public. This may have been pertinent to establish the misrepresentation. The jury found that it was. But the figures have no pertinency to the amount of damages. The net income of the operation, as reflected on the books was not changed by the duplication in gross income since it was offset by an entry relative to cost of goods sold. Another example of potential misunderstanding as to amount of damages is set forth in footnote 3, supra.
Although instructions relative to measure of damages are ordinarily of considerable help to a lay jury, such instructions need not be given in those circumstances in which the measure is obvious, simple and easily apparent. Davis v. Graham, 31 Wyo. 239, 225 P. 789 (1924). The circumstances of each case must be considered in the determination as to whether or not a measure of damage instruction is necessary. The evidence in this case was sufficiently complicated with reference to the pertinency to damages of the dollar figures used in the evidence as to render [1326]*1326such instruction necessary so that the jury would have proper understanding of the application of legal principles in arriving at the amount of damages.
“Damages must be measured by a legal standard, one which serves to guide the fact finder in determining what sum will compensate the injured party. * * * ” Mangham v. Hall, Tex.Civ.App., 564 S.W.2d 465, 468 (1978).
See Jamison Co., Inc. v. Westvaco Corp., 5th Cir. 1976, 526 F.2d 922; and Levine v. Giant, Inc., 197 Pa.Super. 339, 178 A.2d 802 (1962).
“Generally speaking, the court should instruct the jury as to the proper measure of damages in the case and the elements to be considered in fixing them. * * ” 22 Am.Jur.2d Damages, § 364, p. 448.
The instructions in this case were inadequate to insure accomplishment of substantial justice. The indicated objections were sufficient to preserve the error for our consideration since they informed the court that a proper “standard by which to measure damages” was not given to the jury. This objection was accompanied by a request that a proffered instruction thereon be given. An objection was made to the refusal to give it. The trial court thus had an opportunity to avoid error. Haley v. Dreesen, Wyo., 532 P.2d 399 (1975). Further, the court has an obligation sua sponte to avoid giving instructions which are conducive to an award of double damages and to give those instructions which so concern a fundamental issue as to require the same in the interest of substantial justice. LeMieux v. Sanderson, supra; St. Louis-San Francisco Ry. Co. v. Farrell, Okl., 263 P.2d 518 (1953); City of Altus v. Martin, 185 Okl. 446, 94 P.2d 1 (1939). See Borcherding v. Eklund, 156 Neb. 196, 55 N.W.2d 643 (1952); Burns v. Pennsylvania R. Co., 233 Pa. 304, 82 A. 246 (1912); Harrington v. State, Tex.Civ.App., 385 S.W.2d 411 (1964).
The granting of summary judgment in favor of defendant Mary G. Tice in Case No. 4963 is affirmed. The judgment for plaintiffs in Case No. 5043 is reversed, and Case No. 5043 is remanded for a new trial.