*586Decided October 3, 1911.
On Petition for Rehearing.
[118 Pac. 165.]
Mr. Justice Beandelivered the opinion of the court.
Defendants petition for a rehearing upon the point involving the measure of damages. For a statement and former opinion of the case, see 114 Pac. 944.
Prior to the last date for the delivery of 100,000 pounds of hops for the year 1908, according to the terms of the contract, plaintiff sent the following letter to defendants:
“Salem, Oregon, Oct. 8, 1908.
“Messrs. T. A. Livesley & Co.,
“Salem, Oregon.
“Dear Sirs: Our contract with you, dated 25th August, 1904, for the sale of one hundred thousand pounds of hops of the growth of the years 1905 to 1909, inclusive, provides, as you are aware, that we shall deliver the hops not later than October 15th, f. o. b. cars Independence or f. o. b. boat at Murphy’s Landing. In 1905 we delivered the hops on board boat at Murphy’s Landing at your request. The contract does not state whether we or you have the option of delivering on board cars or on board boat, but in any event we are willing to deliver the hops this year wherever you may designate. Kindly therefore let us know at once by return mail whether you desire the hops delivered on board cars at Independence or on board boat at Murphy’s Landing, so that we may provide the cars or boat for delivery as you may desire. We have this year one hundred thousand pounds of hops of the kind and quality described in the contract, and we hope you will be pleased with the same. Inviting your immediate response, we are,
“Yours truly,
“Krebs Hop Company.,
“By Leonard Krebs, vice president.”
*587On the last date stipulated for the delivery of the hops for that year, defendants replied to the above letter as follows:
“Oct 15th, 1908.
“Krebs Hop Co.,
“Salem, Oregon.
“Gentlemen: We have received your registered letter of the 8th inst. You are aware that we do not regard this contract as in force. You also know that we do not think it is our business to say whether you should deliver the hops, if the contract were in force, at Murphy’s Landing or at Independence. We decline to recognize the contract in any way. We are in the market however to buy hops, and to pay the market price for such hops as we wish. We have no objection to buying your hops independently of any contract. If you have 100,000 pounds of hops of the growth of 1908, and the same are prime Oregon hops, and if you wish to sell them to us subject to our inspection, we are willing to buy this quantity of hops of said uality from you, and will pay you for the same, f. o. b. cars at Independence, Oregon, eight cents per pound, provided you deliver the same not later than the 25th day of October, 1908, and if you accept this offer, give us notice at once on what day you will have the same ready for inspection.
“Yours truly,
“T. A. Livesley & Co.”
It was admitted by defendants in the pleadings that on the 15th day of October, 1908, hops of the kind and quality described in the contract were worth in the market at the time and place of delivery the sum of seven cents per pound, and no more, and upon the trial the difference between this price and the contract price (14 cents) was taken as the measure of damages.
6. Defendants in their answer pleaded that by reason of the defendants’ offer and tender of eight cents per pound for the amount, kind, and quality of hops described in the contract of sale plaintiff was estopped from saying the market price of such hops was but seven cents per pound, and to substantiate such plea upon the trial offered *588in evidence the letter referred to, of October 15, 1908, which was rejected. Defendants contend that under the rule, “where two parties have made a contract which one of them has broken, the other must make reasonable .exertion to render his injury as light as possible, and he cannot recover from the party breaking the contract damages (which would have been avoided, had he performed his duty” (citing Uhlig v. Barnum, 43 Neb. 584, 595: 61 N. W. 749); that the plaintiff was in duty bound to accept the offer of defendants at his peril; in other words, that the measure of plaintiff’s damages is the difference between the contract price of the hops and the price offered by defendants, which would make a difference of $1,000 in the judgment. On the part of plaintiff, it is maintained that the true rule of damages was applied; that the letter offered in evidence contained a number of conditions, and was an offer by defendants to negotiate or make a new contract, and was not competent evidence of value or the market price (citing 2 Suth., Damages [2 ed.] § 654), and it was not the duty of plaintiff to accept such offer.
7. With the principle enunciated in Uhlig v. Barnum, 43 Neb. 584, 595 (61 N. W. 749), no exception can be taken; but .was it the duty of plaintiff to accept such offer? And would it have been reasonably safe in so doing, or can the defendants, as a matter of right, claim the benefit thereof? As held in Dustan v. McAndrew, 44 N. Y. 72, upon the failure of a purchaser to perform a contract for the sale of personal property, the vendor, as a general rule, has the election of three remedies: (1) To hold the property for the purchaser, and to recover of him the entire purchase money; (2) to sell it, after notice to the purchaser, as his agent for that purpose, and recover the difference between the contract price and that realized on the sale; (3) to retain it as his own, and recover the difference between the contract and market *589prices at the time and place of delivery; citing 2 Parsons, Contracts 484; Sedgwick, Damages, 282; Lewis v. Greider, 49 Barb. (N. Y.) 606; Pollen v. Le Roy, 30 N. Y. 549.
In the case at bar the plaintiff chose and the trial court applied the third rule. In Havemeyer v. Cunningham, 35 Barb. (N. Y.) 515, in an action of damages for the breach of a contract to sell an invoice of sugar, brought by the vendee against the vendor for failure to deliver the sugar, it was held that the rule of damages for not delivering the sugar was the difference between the contract price and the market value on the day of delivery, and that this rule could not be varied by an offer of defendants to sell to the plaintiff at a price below the value on the day of delivery. Mr. Justice INGRAHAM, at page 522 of 35 Barb. (N. Y.), says:
“The plaintiffs had a right to a delivery of the property purchased at the stipulated price, and the defendants could not relieve themselves from the consequences of their refusal to deliver by an offer to sell at a higher price, although less than the subsequent market value. Such an offer, if accepted by the plaintiffs before the time of performance arrived, might have exposed them to the charge of having abandoned the first contract.”
The rules of damages apply with equal force to both buyer and seller, and Krebs Hop Company had the right to demand and receive the stipulated price upon a delivery of the hops which were tendered by it, according to the terms of the contract, and defendants had no right to any advantage to be gained by offering to make a new contract. It has been held that where a new contract is made by the parties in regard to the same subject-matter, which entirely supersedes the first contract, no action can be maintained on a ground of a breach of the first contract: Consumers’ Cotton Oil Co. v. Ashburn, 81 Fed. 331 (26 C. C. A. 436); note, 35 Cyc. 615. In the last mentioned case, it was claimed that there was a contract of September 13, 1893, for sale by the company to Ash-*590burn of 2,600 tons of hulls at $2.75 per ton, and 600 tons of meal at $17.25 per ton, and that a subsequent contract was made by the parties for the sale of 1,000 tons of hulls at $4.00 and 300 tons of meal at $20. In an action by Ashburn for damages for the failure of the company to deliver the property according to the first contract, the trial court, at the request of counsel for the company, gave the following instruction:
“The jury in this case are instructed, as a matter of law, that where a contract has been made between two persons, and at a subsequent period another contract,having reference to the same subject-matter, but changing the relations of the first contract, is entered into, the last contract controls or rescinds the first, though there be no such effect expressed between the parties. * *”
To which the court added:
“* * You will determine whether or not, at the time of making the second contract, it was the intention of the parties making the contract to waive or modify the first contract, and whether it was the intention of the parties to make a new. contract, separate and independent of the first, and without any relation thereto.”
In regard to this modification of the instruction requested, it is said:
“The question was, and is here, what was the legal effect of the second contract on the first? Did the second supersede, abrogate, and take the place of the first contract as a matter of law ? If the legal effect of the second contract, referring to and covering the same general subject-matter as the first contract, was that it took the place of the first contract, then the intention of the parties is not material. We think the effect of the second contract was, as contended for by the counsel for the company, that it superseded the first entirely. * * When he entered into the second contract, he lost all rights he might have claimed under the first. If he desired to insist upon his rights under the first contract, he should have stood by it, insisting on its performance, and not have made a subsequent arrangement.”
*591In United States ex rel. International Con. Co. v. Lamont, 155 U. S. 303, 309 (15 Sup. Ct. 97, 99: 39 L. Ed. 160), the following excerpt shows the view of that court upon a similar question:
“Nor does the fact that in making his second contract the relator protested that he had rights under the first better his position. If he had any such rights and desired to maintain them, he should have abstained from putting himself in a position where he voluntarily took advantage of the second opportunity to secure the work. A party cannot avoid the legal consequences of his acts by protesting at the time he does them that he does not intend to subject himself to such consequences. In the case of Bank of United States v. Bank of Washington, 6 Pet. 8 (8 L. Ed. 299), certain payments had been made to the first bank upon a decision by the court below, with notice that the payer intended to take the case to the Supreme Court of the United States, and would expect the payee (the Bank of the United States) to refund the money, if that court should reverse the decision of the court below and hold that it was not due. The court said: ‘No notice whatever could change the rights of the parties, so as to make the Bank of the United States responsible to refund the money.’ The whole case of this relator is covered by Gilbert v. United States, 8 Wall. 358 (19 L. Ed. 303), in which this court through Mr. Justice Miller, said: ‘If the claimants had any objection to the provisions of the contract they signed, they should have refused to make it. Having made it and executed it, their mouths are closed against any denial that it superseded all previous arrangements.’ ”
The offer of defendants contained in the letter, as its terms indicate, was a proposal to make a new contract, concerning the same subject-matter embraced in the original contract, and we do not think the plaintiff was required to accept the same or be governed thereby. It could not make the new contract without danger of further complicating the issues in a prospective action.
We adhere to our former opinion.
Affirmed: Former Opinion Approved.
Mr. Justice Burnett took no part in this decision.