delivered the opinion of the court.

We have examined the record, briefs and opinion of the Court of Appeals in Rinderle v. Morse, 27 Colo. App. 457, and are of the opinion the conclusion reached therein, that the lower court was governed by the legal obligation rather than by equitable principles in the determination of the case, is correct. The judgment of the Court of Appeals in this regard is therefore affirmed and the cause remanded to the District Court for further proceedings.

Judgment affirmed.

Decision en banc.