dissenting.
9. After a careful re-examination into the merits of this cause on rehearing, we are unable to recede from our views as expressed in our former opinion. If there is any error in the proceedings, it is the sustaining of the judgment entered in the first instance. The writer is inclined to the view that plaintiff in that proceeding should have been required to sue in tort and not on contract, as was done in the subsequent action, in which the judgment was sustained on appeal. See Krebs Hop Co. v. Livesley, 55 Or. 227 (104 Pac. 3.) But this remedy, the court held, was not insisted upon in the trial court; hence waived: Krebs Hop Co. v. Livesley, 51 Or. 527 (92 Pac. 1084). Whatever may now be our view upon this question of practice is unimportant, for the rule there announced, as held in the case first cited, has become the law of this case, to avoid which no remedy is available. To sustain the contention that defendant, at the date for delivery mentioned in the contract, was obliged to offer to deliver the hops, would amount to an overruling of all the previous decisions of this court cited in our former opinion herein, to the effect that an offer after its refusal is unnecessary, as well as to disregard the rules announced in the two decisions above cited. That this should not be done is elementary. The rules by which the duty of a seller toward a buyer repudiating a contract of the class giving rise to this controversy is determined is clearly and concisely stated by Mr. Justice Martin, who in the case of Moore v. Potter, 155 N. Y. *370481 (50 N. E. 271: 63 Am. St. Rep. 692), in speaking for the court, says:
“It is well established by the decisions of this court that a vendor of personal property, when the vendee has declined to take the property and pay for it, ordinarily has the choice of any of three methods to indemnify himself against loss: (1) He may store or retain the property for the vendee and sue him for the entire purchase price. (2) He may sell the property and recover the difference between the contract price and the price obtained upon a resale. Or (3) he may keep the property as his own, and recover the difference between the market value at the time and place of delivery and the contract price.”
Had defendant, after awaiting the actual sale of the hops (which sale, under the circumstances, was made within a reasonable time), brought an action for damages against plaintiffs, then plaintiffs might have availed themselves of the defense that the market price on the date of contemplated delivery was adequate to offset the claim, and thereby have constituted a defense thereto, but that is not the situation here. Should we assume, as contended by plaintiffs, that the property was not retained by defendant for plaintiffs, then, as indicated in the action in which this judgment was procured, the remedy should be an action for damages. Under all the adjudications between the parties, this court has held the contract severable and plaintiffs liable in a separate action on each breach thereof. Suppose that defendant had followed the proper course by bringing an action for damages only, and had obtained a judgment, it would hardly be argued that the judgment thus procured must be canceled on the grounds and in the manner asserted in this proceeding. Had the question been raised at the trial in the first instance, defendant would have been required to sue for damages, and a judgment would have been procured therefor, but, this feature being waived, *371the judgment involved, serving the same purpose, was secured. It is difficult, therefore, to conceive on what theory, or under what rule of practice or law, a judgment in tort, which would not have been canceled, must be annulled when the same result by judicial decision has been recognized as being properly secured on contract.
Again, there is nothing in the pleadings to indicate that plaintiffs were either ready or willing to receive the hops at the date fixed by the contract for their delivery, or that, in lieu thereof, they would have accepted the money received therefor had the hops been sold. The injury complained of is a result of plaintiffs’ default. Then, in the absence of fraud or wrongful intent, shall defendant be held bound to cancel a judgment legally acquired by reason of the fact that on October 15th it did not choose to become the agent of plaintiffs, and sell the property which plaintiffs at all times insisted did not belong to them? To recognize the rule contended for by plaintiffs would be to permit the party most in fault to take advantage of his own mistake, to the prejudice of the one least in fault, and whose fault, if any, consisted in an error of judgment as to the best or most profitable time to dispose of the property. Had defendant sold the hops on the 15th day of October at the then market price of 14 cents per pound, and had hops of that class on the date of the final determination of the suit been worth 50 cents per pound, plaintiffs would have been in equally as good standing in a court of equity to demand an accounting against defendant, as now to insist that, after placing defendant where it could not deliver to plaintiffs, it must be held bound to cancel a judgment, the validity of which is unquestioned, merely because plaintiffs might have found a purchaser at the market price on October 15th. It will thus be seen that defendant as a result of plaintiffs’ course was at best placed in a perplexing position, and, in the absence of *372fraud, should not in equity be required to suffer a loss, as a result of giving faith to the declarations of plaintiffs’ agents, merely because such agents subsequently changed their minds. Saying that plaintiffs have received nothing or will receive nothing for the $4,000 for which the judgment has been secured, is of no avail, for, admitting this contention, it must also be conceded that defendant. after receiving this sum will still be the loser on the contract as a result of plaintiffs’ rescission thereof.
The authorities relied upon by plaintiffs are cases where the complainants were prevented by fraud or accident, unmixed with any fraud or negligence in themselves or their agents from procuring the relief desired, under which circumstances courts of equity are authorized to enjoin an adverse party from enforcing a judgment. But these conditions are wanting here, and the cases relied on are accordingly not in point. The complaint recites that defendant neither delivered the hops nor accounted for the proceeds. As shown, the question of delivery is out of the case. If plaintiffs can recover at all, it must be on the basis of an accounting for the proceeds received from the sale, which, as before indicated, on account of the sale being at a loss, would avail plaintiffs nothing. At the oral argument it was admitted and we think properly, that plaintiffs under the showing made are not entitled to recover anything on that basis, and “have no enforceable claim against the defendant”; it being urged that, on account of the market price of the hops equalling the contract price on the date of intended delivery, the judgment should in equity be canceled. But we are not conscious of any system of reasoning by which it can be held that a valid and subsisting judgment may in equity be canceled by a nonenforceable claim. There is no doubt as to the soundness of the contention that defendant had the right to hold the hops until the agreed date of delivery, and then *373resell them and hold the purchaser for the loss occasioned thereby, but it does not follow, nor do the authorities go to the extent of holding, that defendant under the facts was bound to pursue this course. It was only one of defendant’s privileges, and not a necessary course, especially in view of the fact that the purchasers, through their failure to comply with the contract, placed the seller in the embarrassing position of determining upon the safest course to pursue in order to escape loss.
Considered from any standpoint, defendant is least in fault, and the misfortune, if any, must fall to the lot of those to whose acts the conditions complained of are directly traceable — the plaintiffs. Under the most favorable view possible' to plaintiffs, more cannot be said than that as between them and defendant, their equities are equal, and, being so, the law must prevail. The law gives to defendant the judgment, and under the issues and showing made, a court of equity is powerless to annul it.
10. Mr. Chief Justice MOORE concurs in the foregoing opinion, and Mr. Justice Eakin and Mr. Justice McBride dissent. Mr. Justice Slater being of counsel in the court below, did not sit. The court being equally divided, the decree of the trial court is affirmed. Affirmed.