delivered the following dissenting opinion.
I examined this case upon the record and briefs at the time the opinion was written and fully concurred therein, but, upon further examination of the case, I have determined that the conclusion of the opinion is wrong.
It appears that the plaintiffs sought to cancel the contract before any payment by them was made thereon. Defendant, however, refused to acquiesce therein or permit plaintiffs to rescind. For the purpose of enforcing *374the contract, defendant brought an action in the circuit court to recover the two advance payments overdue, and recovered judgment, which, in effect, adjudged that plaintiffs could not repudiate the contract, but must perform it. Thus the effect of the judgment of the court and defendant’s conduct was that the contract continued in full force. Therefore plaintiffs were also bound to fulfill it. By reason thereof defendant has waived plaintiffs’ default in payment as constituting a forfeiture, and has insisted upon performance, notwithstanding the default. When the judgment was rendered against these plaintiffs for such payments, they stood in the same position as if they had made the payment long after maturity; the delay having been waived by defendant. In other words, the effect of the judgment was not a recovery upon a forfeiture, but was a determination that plaintiffs, so far as these two payments were concerned, were entitled and required to proceed with the contract, and therefore defendant also was bound to perform. If, upon the abandonment of the contract by these plaintiffs, defendant had treated it as a breach and had sought only indemnity therefor, it would not have been necessary for defendant to make a tender of the hops, or otherwise proceed with performance of the contract. But as defendant refused to permit plaintiffs to abandon the contract, demanded performance, and secured the judgment aiding them to enforce it, it was its duty also to perform. It could not while enforcing the contract against plaintiffs treat it as forfeited or abandoned by them or ignore it itself. To avoid default on its own part, therefore, it was necessary to make a tender of the hops as a step in its further enforcement against plaintiffs.
In Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59, (38 N. E. 773: 30 L. E. A. 33), the court in discussing the rights of the parties in case of a breach by one say:
*375“It is well settled that where one party repudiates the contract, and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: (1) He may treat the contract as rescinded, and recover upon quantum meruit, so far as he has performed; or (2) he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified for performance sue and recover under the contract; or (3) he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing.”
This defendant has elected to rely upon the second remedy above mentioned, to keep the contract alive for the benefit of both parties, and at the time for the delivery of the hops it must have tendered them. In Kadish v. Young, 108 Ill. 170 (43 Am. Rep. 548), a contract was made for the future delivery of grain, and the next day the purchasers gave notice that they would not be bound by the contract, and the question was whether such notice created a breach of the contract, or whether, notwithstanding the notice, the seller had the legal right to wait until the day for delivery under the contract and then resell and charge the purchaser with the difference, and it was held that the seller was not bound to act upon the notice, but was entitled on the day for delivery fixed by the contract to tender, resell, and charge the purchaser with the difference. It is said in Johnstone v. Milling, L. R. 16 Q. B. Div. 460, that the real operation of a renunciation of the contract gives the other party the right of electing, either to treat the declaration as brutum fulmen and holding fast to the contract, to wait till the time for its performance has arrived, or to act upon it and treat it as a final termination of the contract. In the latter case he may recover upon the breach at once. In Frost v. Knight, L. R. 7 *376Exeh. Ill, it is said that the promisee may, if he pleases, treat the notice of intention as inoperative and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of nonperformance, “but in that case he keeps the contract alive for the benefit of the other party as well as his own. He remains subject to all his obligations and liabilities under it, and enables the other party not only to complete the contract, * * but also to take advantage of any supervening circumstance which would justify him in declining to complete it,” such as the default of the other party.
In this case defendant was required either to act upon the renunciation by plaintiffs as final and recover upon it as a breach, or, as it attempted to do, ignore it and keep the contract alive for the benefit of both parties by fulfilling the contract on its part; but it failed to perfect this remedy, not having tendered the hops on the day for delivery, and thereafter having sold them at plaintiffs’ risk. Defendant could not hold the hops more than a reasonable time beyond the date for delivery before selling them. If it held them, awaiting a rise in price, it did so at its own risk, and not that of the plaintiffs. Sutherland, Damages (3 ed.) § 647, says, that on the failure of the vendee to receive the property the measure of the vendor’s damage is the difference between the contract price and the market value at the time and place of the breach, and that this market value may be ascertained and fixed by a resale within a reasonable time, which means the earliest practicable period after the time for delivery. And, if there is a market value for the property, he cannot keep it for a rise in price at the vendee’s risk. Sutherland, Damages (3 ed.) § 570; Jochams v. Ong. 45 La. Ann. 1289 (14 South. 247) ; Gehl v. Milwaukee Produce Company, 116 Wis. 263 (92 N. W. 26).
*377Plaintiffs have received nothing for the $4,000 for which defendant has obtained judgment. The liability upon which the judgment was based was the contract for money to be advanced upon the hops, and, plaintiffs having been held bound to fulfill the contract, equity will require defendant also to fulfill it by accounting for the hops, according to the rules above stated; and now, because plaintiffs have received nothing for the $4,000 for which judgment was rendered, equity will see that they are only required to pay such sum upon the judgment as will compensate defendant for all damages suffered by reason of plaintiffs’ refusal in the first place to perform. If defendant were seeking to recover on the contract, plaintiffs’ repudiation of it would have excused defendant from the necessity of a tender; but defendant is not acting upon plaintiffs’ repudiation. It has insisted upon performance and the court has decided that plaintiffs must perform. Therefore the situation is changed. Not only may plaintiffs have desired to proceed with the contract, but it is already determined for them, both by defendant and the court, that they must do so, and the writer of this opinion deems that a tender of the hops was necessary; but, even if unnecessary, as held in the opinion, that is all that is waived. Defendant must sell within a reasonable time or hold the hops at its own risk. The measure of its damage is the difference in value between the contract price and the market value at the time for the delivery and the collection of the judgment beyond that amount should, be perpetually enjoined. It appears from the record that at the time for delivery the hops were worth the contract price. Therefore the decree should be reversed and one rendered here, requiring plaintiffs to pay to defendant all costs and disbursements incurred by it in the law action as specified in their written tender, and that the judgment be canceled.
Mr. Justice McBride concurs in this dissent.