On Petition for Rehearing.
(132 Pac. 958.)
Mr. Justice Burnettdelivered the opinion of the court.
6. If that were the question here, it cannot he denied that a party to an executory contract containing mutually dependent covenants to be performed, some by one party and the remainder by the other, cannot recover damages for a breach thereof without alleging and proving, if his allegation is traversed, that he has performed his own covenants or shows some excuse binding on the other party for not performing.
7. The position assumed by the defendants in their petition for rehearing would be well enough if they had kept good their tender of the hops, so that at any time the plaintiffs could have obtained them on payment of the balance of the purchase price. When a buyer refuses to take and pay for property offered by the *299seller in performance of an executory contract for the sale thereof, the latter has the choice of either of two remedies. He may keep the property on hand subject to the order of the buyer, after making tender thereof, and maintain an action for the balance of the purchase price, or he may sell the goods for the best price obtainable, and if that is less than the contract price sue the buyer for the difference.
8. In this case the defendants who are sellers have adopted the latter alternative. They claim only $800 damages for the alleged breach by the plaintiffs of the contract pleaded, and not only keep $1,576.32 advanced, but also have sold the hops for their own account, keeping the proceeds. By so doing they waive performance of the contract by the plaintiffs, and can only hold them for damages resulting from the breach of the agreement. Compensation is all that can be allowed in such instances. The defendants are entitled to be made whole, and no more. They cannot sell the hops for their own account, and also keep the money paid on the purchase price beyond enough to cover the damage they have suffered.
The result attained in the former opinion was correct, and the petition for rehearing is denied.
Rehearing Denied.