Tlie facts and contentions in this case are in most respects similar to those in the case of the same plaintiff in error against R. S. 'Worthington, defendant in error, decided this day. What we said in our opinion in the Worthington case expresses our views on several similar contentions! in this ease, and need not be repeated. Only the differences between that case and this in so far as they seem material and to require further discussion will be noticed. The parties will be called plaintiff and defendant as in the court below where, as in the Worthington case, the plaintiff obtained a judgment for damages for breach of a contract to sell alfalfa-hay.
The contract in this case provided that plaintiff’s hay should be delivered at defendant’s mill “when required by the first party (defendant) at any time or times between August 13, 1920, and February 1, 1921.” A part only of the hay was delivered and the suit was to recover damages for defendant’s refusal to accept and pay for the remainder. There was ample evidence that the defendant not only did not require the delivery of the remainder of the hay, but that it several times refused plaintiff’s requests that he be permitted to deliver more. In these circumstances an actual delivery or tender of the hay at the mill was not necessary. 35 Cyc. 250, 251; Denio Milling Co. v. Malin, 25 Wyo. 143; 165 Pac. 1113.
Whether or not the time for delivery and acceptance of the hay was of the essence of the contract, we think there can be no doubt that there was a breach of the contract by May 3, 1921, when the plaintiff commenced this action. As in the Worthington case, there was not only a refusal of the buyer to accept delivery during the time mentioned in the contract, but also, later, at the meeting in February, 1921, when the plaintiff was present. Following that meeting the plaintiff received a notice signed by defendant, dated February 24,1921, as follows:
*94“We will receive bay tlie rest of this week or until we get enough hay to fill two cars and finish filling the warehouse again. ’ ’
Assuming that defendant had a right to require a delivery of hay after February 1, we do not think it did so by this notice, which did not request plaintiff to bring his hay to the mill, or give any assurance that his hay, if brought there, would be accepted. The plaintiff no doubt assumed, as we think he had a right to do, that similar notices had been sent to all or many of the persons with whom the defendant had contracts to buy hay, and that if he acted on the notice, the unnamed quantity of hay that defendant was willing to receive would probably be received from others before plaintiff could make a delivery. We think his failure to act on the notice did not affect his rights under the contract or to sue for its breach.
There was no other request for delivery before the commencement of this action. At that time, if not before, we think the defendant had “wrongfully neglected or refused to accept and pay for the goods,” within the meaning of section 64 of the Uniform Sales Act (C. S. Sec. 4786), and the plaintiff had a right to sue for-the breach of the contract.
About one month after the commencement of this action the defendant wrote plaintiff that it (defendant) was men ready to receive any hay plaintiff had for delivery under the “former agreement” at the prices and upon the grades stipulated therein, and stating further:
‘ ‘ In view of the fact that you have brought a suit against us, you are further notified that this offer to receive your hay is in no sense an admission of liability under said former agreement or of its present validity. If, however, you want to deliver your hay, we will receive the same as above' stated, provided jmu dismiss said suit. ’ ’
*95We do not understand that it is contended that this was an offer of defendant to perform the contract, or that defendant had any right to insist on plaintiff’s performance at that time. But it is argued that the plaintiff’s refusal then to deliver his hay to defendant was a failure of plaintiff to minimize his damages. In actions of this kind the measure of damages is fixed by paragraph 3 of Sec. 64 of the Uniform Sales Act as the difference between the contract price and the market or current price at the time when the goods ought to have been accepted. On bringing the action for damages, the plaintiff elects to keep the goods as his own, and it is immaterial whether he resells or continues, to hold them. The defendant’s letter was no more than a conditional offer to take plaintiff’s hay. The plaintiff did not accept it for reasons which he stated in his testimony, but which we deem it unnecessary to recite here. He could keep or resell the goods as he chose, and his refusal to act upon defendant’s offer did not affect the measure of damages. This follows from the principle “that the buyer in such cases cannot take advantage of a resale of the goods for more than the market price at the time when the goods ought to have been accepted. 35 Cyc. 598; Benjamin on Sales (6th Ed. by Ker) p. 931; Bridgford vs. Crocker, 60 N. Y. 627; Duncan v. Wohl, South & Co., 201 App. Div. 737, 195 N. Y. Supp. 381; Dill v. Mumford, 19 Ind. App. 609; 49 N. E. 861; Taylor v. Capp, 68 Ind. App. 593; 121 N. E. 37.
The judgment of the district court will be affirmed.
Affirmed.
PotteR, Ch. J., and Blume, J., concur.NOTE — See 35 Cyc. pp. 250, 251, 592, 598.