This section contains the nature of the case and procedural background.

Ashmore (D) acquired property in 1953 and operated a grocery store in the building. The property was leased to Don Jones for $150 per month. D had fire insurance. Skelly (P) made a contract with D for the sale of the property for the sum ofr $20K; the contract was dated July 31, 1957. The transaction was to close on April 16, 1958, but on April 7 the building, furniture, and fixtures were destroyed by fire. P informed D that it was willing to close the deal upon assignment of the insurance proceeds. D disagreed with this provision and P informed D that it would still close the transaction but not waive its rights to the insurance proceeds. The insurance proceeds were paid. The contract for sale did not include any provisions as to who would assume the risk of loss. P sued D for specific performance and abatement. The trial court found for P and ordered specific performance with an abatement of $10K for the insurance proceeds. D appealed.

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