(dissenting)—I dissent. I have no doubt the contract was made in the best of faith. Appellant alleges it is a domestic corporation. Manifestly, in addition to its prospects of profits, with commendable zeal and catching the spirit of the times, it determined, even at some financial risk, to commence or continue operating a cannery for the support of the government’s needs for the increased production and preparation of food, and made this contract; and now, after it appears to have been faithfully performed by the other party, it seeks to hide behind the government and, through a strained construction of its contract, escape from the effects of its solemn obligation.
The essential and controlling error in the majority opinion as to the. purpose of the contract — which adopts the contention of appellant — lies in its con- ■ elusion: “Its primary purpose was for the sale to the appellant of the fish caught by the respondent. ” On the contrary, the contract is entitled to no other construction than that of an attempt on the part of the *650appellant to make a dependable arrangement for a needed supply of fish for its cannery and payment to respondent by the plan of the number of fish caught and delivered, together with an assurance against possible loss incidental to the hazard of the undertaking. There can be no question but that, under the terms of the contract, if respondent had caught and delivered to the appellant such a number of fish that the amount to be paid respondent had exceeded $5,000, appellant would have been compelled, and probably pleased, to pay such excess, with.the result of eliminating from the contract any further need for the assurance of $5,000; thus demonstrating that the assurance of $5,000 was in no sense a fixing of the price of the fish, but intended only to protect the respondeht against possible loss in order to induce him to undertake the catching of the fish for the cannery. If the theory of appellant is correct, it means that, if respondent’s catch, at regulation prices, had equaled or exceeded $5,000, the contract would be unassailable; but if the catch, at regulation prices, were less than $5,000, as was the case here, then the contract is wholly illegal because against public' policy. That is, the test of the validity of the contract, upon its being carried out, is found in the final result, theretofore uncertain, which no one could have foreseen or estimated with reasonable certainty. Assume faithful service on the part of the respondent through the whole period covered by the contract had resulted in catching no fish; certainly appellant could be made to pay its obligation of $5,000. To the extent fish were caught and delivered, the contract price (subject to the government’s control) fixed the compensation for the services. But for the risks incidental to so uncertain an enterprise, provision was made by the assurance of $5,000. The price was certain, or made so by the government; the risk was un*651certain. No one wishes for an assurance that the specified due date of a promissory note will arrive, for that is certain; but often one exacts a guaranty or assurance that payment will'be made, for that has the element of uncertainty. So in this case the balance of the $5,000 sued for is a promise to pay, having for its consideration the risk undertaken by the promisee, and is wholly outside of and beyond the matter of the price to be paid for the fish. Another view supporting the claim that the consideration for the promise was the risk assumed is that, if the respondent had wholly or partially failed to perform his part of the agreement (which is not the case here), to that same extent it would have afforded a defense to the action on the promise to pay $5,000.
And again, the contract provides that, if necessary to prevent spoiling, fish caught might be sold to other parties, in which event the amounts thus received should be applied on the agreement. What agreement? Surely not the agreement to pay for fish actually delivered to appellant; thus distinguishing appellant’s agreement to at least divide the risk, wholly independent of its other agreement to pay as the fish were delivered. If appellant’s idea of the contract is right, then one under a contract providing therefor would not be allowed to pay the transportation of men from Seattle to its cannery in Alaska, and put them, or others already there, to work on its own fishing boats with the understanding that they would be paid the regulation price at which fish were sold; because, forsooth, the expense incurred, together with the price to be paid for the fish, would exceed the price fixed by the government, and therefore the contract would be void. Or, as pertinently remarked in the argument of the case, it is difficult to understand why the cost of oil furnished by appellant for the operation of the *652fishing boat from Seattle to the company’s plant and return, according to the provisions of the last section of the contract, was not taken out of the amount due according to the number of fish appellant did receive.
In the fifth section, the contract provides that, if respondent does not catch enough fish to earn $5,000, appellant will pay the difference. That is, if respondent’s earnings by the plan of paying so much per fish should be less than $5,000, then, to compensate him for his loss, appellant agreed, as an incident to* the risks of its own cannery business, devoted to the pursuit of profit as wed as the needs of the government, to pay the difference. That is the matured promise this suit is brought to enforce, and, in my opinion, it is a perfectly lawful and enforcible obligation.