I concur in the conclusion that this judgment should be affirmed. The contract which is here sued on was for a term of five, years from the day of its date (June 27, 1901). It purports to make the plaintiff the defendant’s sole selling agent for its entire output of cement, manufactured at Stockertown, Penn., or at any other place, and obligated the defendant to pay to the plaintiff a commission of six per cent on all sales of cement, whether made by the party of the second part (plaintiff) or others. Each clause of this contract contains obligations of the defendant, but the contract can be > searched in vain for any obligation imposed upon the plaintiff, except that the plaintiff is to keep a set of books and to maintain at *394its expense in. the city of Hew York a suitable office'to conduct the business (which it nowhere agrees to conduct), with' the dignity necessary to properly represent the defendant, with a proviso that such office may or may not be a part of the party of the second part’s general office for the'sale of cement,,and to pay all postage or other charges for the delivery of advertising matter which it (party of the first part) may distribute. ‘There was no acceptance by tin party of the second part of- the appointment as sole selling agent, although that could possibly be assumed from .the execution of its contract. There was no obligation of the plaintiff to sell or to' endeavor to sell a barrel of the defendant’s cement; no obligation to expend a dollar in the prosecution of the business of the defendant. If it sold none of the defendant’s cement, it had no use for boobs or clerks and would not incur. any expense therefor; and if it distributed no advertising matter, it would be under no obligation to pay any postage whatever. The plaintiff could comply with every provision of the contract without being required to spend a dollar, and the defendant would have to pay to the plaintiff a commission of six per cent upon all' the cement that it manufactured and sold. There could never be any breach of this contract, by the plaintiff, because under it the plaintiff did not obligate itself to do anything; and yet for five years it could be entitled to demand from the defendant a commission of six per cent upon all cement that the defendant manufactured and sold.’ The contract contains no statement of the consideration, and the "only consideration that could sustain it is mutual promises of the parties thereto; but in order that there should be such a- consideration there must be promises or obliga- - tions assumed by both of the contracting parties. The only possible consideration, therefore, for this contract would be an assumption of mutual obligations by both the contracting parties, and, as I read this contract, there is no obligation assumed-by the plaintiff to sell any cement, to make any efforts to sell any cement, or to transact any business for.the defendant, no obligation for a breach of which a cause of action would arise in favor of the defendant against the plaintiff. It is said in 9 Cyclopedia of Law and Procedure (at p. "325): “ A promise is a good consideration for a promise, provided always that it imposes some legal liability on the. person making it. If it imposes none, then it cannot be a consideration.” And at page *395327: “ There are many cases in which, although the offer is definite enough, yet the acceptor by merely accepting has really himself promised nothing in return, has not made himself liable for anything, so that,, although one is' bound the other is not, and the engagement lacks what is called mutuality. In such a case-there is not an enforcible agreement.” In Chicago & G. E. R. Co. v. Dane (43 N. Y. 240), where the defendants wrote a letter- to the plaintiff, saying they agreed to receive “in this port (New York), either from yard or vessel, and transport to Chicago, by canal and rail or the lakes, for and on account of the Chicago and Great Eastern Railway Company, not exceeding six thousand tons gross,” the letter was answered as follows: “ In behalf of this company I assent to your agreement, and will be bound by its terms,” it was held that there was no contract, the court saying: “ But there was no consideration received by the defendants for giving any such option to the plaintiff. There being no consideration for the'-promise of the defendants, except this acceptance by the plaintiff, and that not. binding it to furnish any iron for transportation, unless it chose, it follows that there was no consideration for any promise of the defendants and that the breach of such promise furnishes no foundation for an action.” Rafolovitz v. American Tobacco Co. (73 Hun, .87) is another illustration of the same principle. In that case the defendant promised and “agreed, in consideration that the . plaintiff would purchase and sell a certain cigarette manufactured by the defendant, that the defendant would allow and pay them as compensation or commission for said purchase twenty cents on every thousand'of cigarettes manufactured by the defendant and purchased by the plaintiff. It was held that as there was no promise on the part of the plaintiff to purchase cigarettes which was enforcible by the defendant, it did not furnish a consideration for the defendant’s promise.
I think, therefore, as there was an entire lack of mutuality, and this contract imposed no obligation upon the plaintiff, there was no consideration to support the promise of the defendant, and, therefore, there was ho cause of action.
O’Brien, P. J., Clarke and Scott, JJ., concurred.
Judgment and order affirmed, with costs,