to a petition for rehearing and modification of the opinion.
Appellants’ counsel, by petition for rehearing, has presented with great force the proposition that appellees, having an election of remedies for the breach of their contract, can not take more than one; or, as he puts it, “declare the contract void, and at the same time seek a recovery which could only be ba,sed on the contract.” His argument is based upon the theory .that the vendors have declared -the contract void, and have sought to hold the forfeited money; that this must be done subject to the vendees’ right to sue in equity for relief against the penalty and that the vendors have the right to ask the court to require the vendees, who come into court seeking equity, to do equity. Of course, when counsel speaks of declaring the contract void, and at an end, he refers only' to that part of the contract which requires the vendors to convey their land and the vendees to pay for it, for the contract does not provide that it shall be entirely void by reason of the breach, but expressly excepts the payment of the two sums aggregating $20,500. So the declaration of forfeiture and the attempt to retain the forfeited money is an attempt to enforce the literal terms of the contract. The vendor’s claim is upon the contract, and the vendees have sued for equitable relief against enforcement of this provision of the contract. The relief is granted them upon equitable terms, which are that the vendors shall not be *231put to actual loss because a court of equity relieves against the enforcement of tbeir contract right. By the terms of their contract they were entitled to |20,500, already paid to them as an indemnity against loss by reason of the breach of the contract. Having elected to rely upon this indent nity, they are limited to the amount of it. They can not get more than the amount thus fixed, but they must not be compelled in equity to take less than the loss they have suffered by the vendees’ failure to carry out the contract. They are allowed to retain out of their forfeiture so much, and only so much, as will make them whole; substantially the same amount that they would obtain by a suit for specific performance, for in such a suit the costs of decretal sale would go against the vendees in the contract.
Appellants’ case is an application by them to be relieved from a forfeiture. It rests upon the ground that appellee should not, in justice and right, be permitted to retain appellants’ money for nothing. The relief which equity will afford them must be governed by equitable principles. In so far as appellees have paid out the money received from appellants in reasonable expenses fairly -incurred in making or attempting to carry out the contract, they should not be liable; for this money is! not in their hands,- and the principles on which appellants'’ action is grounded apply only to money in the hands of appellees which, in equity, they should not be permitted to retain. And in determining how much, if any, of. the sum paid by appellants to appellees may be retained, equity will not consider alone the disbursements made by appellees, buff will take into consideration also the rights of appellees, and the situation in which they are left. If, at the. termination of the contract, the property, valued at its reasonable *232market price, was not of value equal to the amount coming to appellees from appellants under the contract, then to this extent they would be losers by reason of appellants’ breach of the contract, if the fund in their hands is taken from them. Equity will not aid appellants in making a profit out of their own breach of contract,, at the expense of appellees. Appellants can not be placed in a more favorable situation than they would have occupied if they had complied with' their contract, and they can recover only so far as, in justice and right, appellees should not be allowed to retain the money paid to them over and above their cost and reasonable expenses. If the property was of value equal to the balance due under the contract, they may recover the whole balance. If it was not, they may recover only so much of it, if any, as remains after deducting the loss which appellees sustained by appellants’ failure to carry out their'contract.
The petition is overruled.