(dissenting) — The statement of the majority that the allegation quoted in the opinion, if true, constitutes a cause of action, is misleading. Standing alone, it does not state a cause of action. It is only when coupled with the presumption that the parties had in mind that the rock should be removed within a reasonable time, that the dignity of a cause of action can be given to the charge. All that can be made out of the record, when considered in its entirety, is that respondent employed appellant to remove rock from his land. The contract was entered into on the 29th day of July, 1909. Respondent gave notice to the appellant in March, 1911. An unreasonable time had elapsed. Appellant admits that the rock might have been removed in a very much shorter time, but it seeks to maintain an action for damages against respondent by asserting that there was a contemporaneous agreement or understanding that he would sell the rock at a profit. It. is not denied by respondent that appellant could do as it pleased with the rock, but it does not follow that respondent took upon himself the uncertainties and vicissitudes *640of the market. Appellant admits that it did not remove the rock because of market conditions. If, then, we give the quoted allegation the character of a cause of action, we have not only charged respondent with an understanding that the rock was to be sold, but that it was to be sold at a profit and that the time in which the rock was to be removed' is to be measured by reference to the convenience and necessities of the appellant alone. The effect of such holding is to make the respondent, whose only object in entering into the contract was confessedly to have the rock removed within a reasonable time, a guarantor of a profit which appellant alleges would have amounted to $12,220. I think this will be the first case in the books where a man has employed another to clear a piece of land', and has been held liable to answer for anticipated profits to be realized out of a commodity for which there was no certain demand, and which the record shows has no certain market price, and which is as abundant in and about the city of Spokane as the air we breathe. The case nowhere touches the cases allowing anticipated profits, for the reason that that question, if it can arise at all, could not arise until the appellant had shown a full performance — that is, that a reasonable time had not elapsed when respondent ousted him from his premises. The question of profits in so far as it applies to this case, is covered by the case of Benjamin v. Puget Sound Commercial Co., 12 Wash. 476, 41 Pac. 166.
To this extent, I dissent from the holding of the majority.