This cause was here on a former appeal and is reported in 123 Mo. App. 19, where a statement of the case may be found. On retrial plaintiff was again defeated on its claim for damages on the first count, and again appeals.
The claim of the plaintiff is, and has been, that under the terms of the contract between it and defendants it had the right to elect to sell the vehicles to defendants and require them to execute proper notes *647in payment. That it did so elect, and that defendants committed a breach of the contract by refusing to purchase and execute the notes. The defendants, on the present appeal, now contend that plaintiff did not make its election to sell within the time required by the contract and that therefore they could not be charged with a breach by refusing to buy. These claims of the parties are based on the following provisions of the contract: “That on and after the first day of October of each year during the continuance of this contract said principal can elect to sell outright to said agents any and all vehicles not settled for, and demand from said agents a note or notes payable at such time as said principal shall elect, but not less than three months after said first day of October, for an amount equal to the unpaid portion, or any part thereof, of the invoice price of any and all goods which had been shipped to said agents by said principal prior to October first of such year, under said contract. This contract to be renewed on or about January 1, 1904. The Carthage Implement Company reserving the right, if they so desire, to settle for all or any goods on hand January 1, 1904, by approved note or by cash less the discount.” Subsequent to the first day of January but before the 15th day of January, 1904, plaintiff served on defendants a notice to them to buy.
Plaintiff noAV claims that defendants’ liability was decided on the former appeal and that it is now res adjudicada. Defendants insist that the point now made Avas not presented to the court and Avas not considered, and cite Gwin v. Waggoner, 116 Mo. 152, in support of their position. On account of the neglect of defendants, our inclinations lie altogether in the direction of sustaining plaintiff’s claim. When the case was before us on the former appeal defendants failed to furnish us with argument, brief or statement, but allowed the case to go by default and our attention was not directed *648to the point now made. But when we consider that the case was appealed before on account of the trial court sustaining a motion to strike out the material part of the first count of plaintiff’s petition, that we reversed and remanded the cause, and that then defendants filed an answer in the trial court setting up that plaintiff’s election had not been made within the time provided by the contract, Ave conclude that they have a right to have that point considered. When a demurrer is sustained to a petition as not stating a cause of action, a reversal of that finding does not preclude an answer setting up any defense or avoidance which the defendants may have.
Coming to the point now made, that the election of plaintiff was out of time, we find it well taken. It will be noticed that the contract gives to plaintiff the right to have defendants to buy on and after the first of October of each year during the continuance of the contract. The contract was to end on the first of January folloAving, for it is provided that it must be then renewed. So it would seem from that consideration that the option should be exercised between the first of October and the first of January. But in addition to this, as further shoAving the intention of the parties, the contract changes the option to the defendants, giving them the privilege of electing to buy on the first of January. It is clear that each opposing party could not have an option on the same thing at the same time. That necessarily ended plaintiff’s option to sell. An option to buy means that defendants may refuse to buy and so puts an end to plaintiff’s right to sell to them.
The trial was had without the aid of a jury and the foregoing considerations show that the court took the correct view of the case. The judgment will therefore be affirmed.
All concur.