dissenting. I' do not concur in the judgment of affirmance in this case. I will not here copy the contract sued upon, it being copied in full in the opinion of the court.
“Where a contract is intended to bind both parties, or where it is of such form or nature that it contains mutual executory provisions, that is to sajq where both parties have bound themselves or intend to bind themselves by reciprocal obligations, the doctrine as to the requirement of mutuality applies; and in such a case, if for any reason one of the parties is not bound, he cannot compel the performance by the other.” 6 B. C. L. 688. Where mutual promises are relied upon as a consideration to support a contract, the obligations of the contract must be mutually binding upon the respective parties; and if'one assume under such an agreement to do a special act beneficial to another, and that other, under the terms of the contract, is under no obligation to perform any act of corresponding advantage to the former, the agreement is without such consideration as will support the promise of the *766party assuming to perform. Morrow v. Southern Express Co., 101 Ga. 810 (38 S. E. 998), and cases cited. Each party to the contract should, by its terms, be able to hold the other to the contract, and compel its performance if advantageous to him. See Atlanta Buggy Co. v. Hess Spring & Axle Co., 124 Ga. 338 (52 S. E. 613, 4 L. R. A. (N. S.) 431), and cases cited. If the contract be such that performance by one of the parties of a promise does not confer the right to demand performance of the correlative obligation from the other, it is lacking in mutuality. See Swindell v. First National Bank, 131 Ga. 714 (49 S. E. 673) and.eases there cited, especially the case of McCaw Mfg. Co. v. Felder, 115 Ga. 408, 411 (41 S. E. 664).
Measured by the foregoing standards, in my opinion the contract sued on here is not enforceable. The alleged seller under this contract has completely limited himself against any and all liability under the contract. As is provided in the contract, the seller has the option to cancel with respect to the delivery of any portion of the soda in the event a vessel be delayed before or after sailing. Separately and in two different places does the seller in this contract relieve himself of obligation to the buyer by expressly providing, “ No arrival, no sale.” Under the terms of the agreement the seller does not obligate himself to ship the soda sold under the contract. This case is unlike the case of Strahl v. Herbst, 159 N. Y. Supp. 718, and the case of Harrison v. Fortlage, 161 U. S. 57 (16 Sup. Ct. 488, 40 L. ed. 616), and the case of Pottash v. Herman Reach & Co., 272 Fed. 658. In. each of those cases the contract provided for shipment, and was definite as to the months in which the goods were to be shipped, and in neither of the contracts under consideration in those cases did the seller have the option to cancel as to the delivery of any portion of the goods purchased. In all the cases relied upon by the seller under this contract the court was authorized, by the express terms of the contract, to hold that the seller had warranted shipment of the goods, or there was an express obligation that the seller would make the shipment. In the contract sued upon in the case of Slater v. Savannah Refining Corporation, 28 Ga. App. 280 (110 S. E. 759), it was expressly provided: "shipment at seller’s option between October 15, and November 30.” In that contract the seller had the option to ship between October 15 and November *76730, but was still under the obligation to perforin this promise. Iu my opinion the contract here for review is altogether one-sided, and should not be enforced. It is only in the fable that one is permitted to cool his soup and warm his hands with the same breath.