CONCURRING OPINION.
STURGIS, J.Having some doubt as to construing the contract mentioned to be one of Avhich time is not of the essence, noting that it is a mercantile contract and the rather strong language used, I pre*634fer to base my concurrence in affirming the judgment on the following grounds:
It is unquestioned that, prior to the time for shipping the onion sets in question, the defendants positively and unequivocally cancelled and repudiated the contract by notifying the plaintiff that they would not receive, pay for or have anything to do with the onion sets if shipped, and forbidding plaintiff to ship same,
The law is that, when a buyer breaches the contract and refuses to accept the chattels contracted for, the seller may treat the- sale as ended by the purchaser’s default; and in such case need not make any actual delivery or tender of the articles sold, and need not incur any labor or expense otherwise necessary in making delivery or tender. [Oehler v. Fruit Co., 162 Mo. App. 446, 142 S. W. 811, and the many cases there cited; Laswell v. Handle Co., 147 Mo. App. 497, 522, 126 S. W. 969; Black River Lumber Co. v. Warner, 93 Mo. 374, 6 S. W. 210.]
In such case the seller has a choice of remedies, one of which was adopted in this case, to-wit, sell the property for the buyer’s account, taking such steps as are necessary to protect the buyer’s interest and obtain the best price. [Rickey v. Tenbroeck, 63 Mo. 563; Koenig v. Boat Manufacturing Co., 155 Mo. App. 685, 135 S. W. 514; Oehler v. Fruit Co., supra.]
The plaintiff therefore was not, after the defendants? positive refusal to accept same, under any obligation to ship the goods at all, much less on the exact day mentioned in the repudiated contract. That it did so, even if one day late, and thus gave defendants another opportunity to accept and pay for the goods, certainly put plaintiff in no worse position than if it had sold on the market without giving such opportunity.
The only obligation the plaintiff owed the defendants after their refusal to accept was to sell for the best price obtainable and charge defendants no more than the difference between the contract price *635and the best market price ascertained in this way. The nncontradicted evidence shows that this was done. In selling for defendants’ account the plaintiff was not confined to any particular market and could certainly seek the best. The evidence showed and the court must have found that the onion sets sold better at' Joplin than they would at Chicago or near there. That they bought a fair price in Joplin is conceded. It was to defendants’ advantage that they were shipped and sold there. Having repudiated their contract, the defendants could claim no right except to have the fair market value of the onion sets credited on the contract price. This they have received to the full.