dissenting:
I must respectfully dissent from that portion of the opinion relating to the issue of damages. In Oloffson v. Coomer (1973), 11 Ill. App. 3d 918, 296 N.E.2d 871, this court clarified the rights and duties of a buyer confronted with a repudiating seller. In April of 1970, Coomer, a farmer, contracted with Oloffson, a grain dealer, to sell Oloffson 40,000 bushels of com at a price of $1,125 per bushel. Delivery of the first 20,000 bushels was to be made on or before October 30, 1970. The remaining 20,000 bushels were to be delivered on or before December 15, 1970. On June 3, 1970, because of an unusually wet spring, Coomer advised Oloffson that he was not going to plant com that season. On that date, the price of a bushel of com for future delivery was $1.16 per bushel. In September of 1970, Oloffson requested Coomer to deliver the com and Coomer replied that he would not be able to do so. Oloffson then purchased 20,000 bushels of com at $1.35 per bushel and 20,000 bushels at $1.49 per bushel to cover the com not delivered by Coomer. The trial court held, and we affirmed, that Oloffson was entitled to recover $1,500, the difference between the cost of com on June 3, 1970, the date that Coomer informed Oloffson that he was not going to supply the com, and the price of com under the parties’ contract.
Moreover, in affirming the trial court’s ruling, we noted that under section 2 — 610 of the Uniform Commercial Code — Sales (UCC) (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 610), after a party repudiates a contract, the aggrieved parly may for a commercially reasonable time period await performance by the repudiating party or resort to any remedy for breach under UCC section 2 — 711. (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 711.) As of June 3, 1970, Oloffson knew that if he didn’t cover the Coomer com contract he would be at risk to his vendees-third-parties and therefore he had a duty to proceed under sections 2 — 610 and 2 — 711(1) so as to effect cover. Therefore, because his damages were limited to the difference between the market price and the cost of cover goods obtained in good faith without unreasonable delay, he could not recover the excess damages claimed due to his waiting approximately four months to obtain the cover or substitute goods.
Similarly, the plaintiff in the instant case was fully aware in March of 1986, before and at the time of nondelivery of the casein, that the defendant could not and would not perform the contract. In May of 1986, when the plaintiff and the defendant discussed this very issue it was clear that the January 1986 contract was repudiated and was not to be performed in accordance with its terms. It was at this juncture that the defendant offered to purchase substitute casein at a loss of $7,000. Thus, I agree with the defendant’s contention that the buyer-plaintiff had a duty to mitigate damages by obtaining substitute cover within a commercially reasonable time period following repudiation of the contract of sale.
The plaintiff, however, waited 17 months after it knew the casein could not be delivered before it purchased substitute goods or “cover.” By awarding the plaintiff damages based on the difference between the market price of casein in August of 1987, $1.45 per pound, and the market prices of $.805 per pound in January 1986 and $1.0725 per pound in February 1987, which were the contract prices under the January 1986 contract and the February 1987 contract, the trial court ignored the applicable law. The majority opinion fails to adequately explain why the market prices for casein in January or March of 1986 were not used by the trial court to compute damages. It is not coincidence that the plaintiff conveniently cries foul when the market price for casein is extremely high. The plaintiff’s actions are devoid of good faith and should not be rewarded. Thus, I find the maximum damages recoverable by the plaintiff here to be $7,000.
I therefore must dissent from that portion of the opinion.