1. Previous to considering -the principal question presented here, it is proper to clear the way, by disposing of the matters which are urged against its examination. The first of these is, that the .creditors whose claims were allowed against the estate, are necessary parties, and unless the writ of error is so amended as to include them, it should be dismissed. The transcript does not show when the estate was adjudged insolvent, though it seems the administrator reported it to be so in June, 1842. In Martin v. Baldwin, 7 Ala. R. 923, we held, that if an estate was in progress of being audited, when the act of 1843 was passed, the .previously existing law, would govern, but if the initiatory steps only had then been taken, all the subsequent proceeds ings should conform to that act. It does not appear here, what proceedings had taken place with respect to the auditing of the claims in general against this estate, but with regard to this particular claim, the court and parties seem to have acted under the last act. Hence we conclude that the estate was not in progress of being audited when the act of 1843 was passed. Under that act, the administrator is the only necessary defendant in error, when the writ of error i;s prosecuted previous to the final settlement by a creditor whose claim is disallowed. Although from some parts of .the record we might infer that the estate was settled, so far as to declare a dividend between the creditors, yet even that does not appear from any judgment of the court. We must therefore conclude, as we did in the case just cited, that the -final action of the court has not yet been had on the settlement, and in this condition of the record, there is nothing to .show the necessity to make the creditors parlies to the writ of error.
2. Another objection to reviewing the judgment of tlje .court is, that in making it the jrrdge acted rather as an arbitrator chosen by the parties, than as a judicial officer, arid .therefore that his decision can no more be reviewed, so ;fqr as the facts and law of the case, than the verdict of a jury in the absence of exceptions. We can only say, in answer to *924this, that the judgment, if that of an arbitrator, has no place on the records of the court, without some action by the judge. But we look upon the matters stated in the bill of exceptions as the agreement of the parties, to dispense with a jury trial, and to submit the facts to the court for its decision, in the same manner as if presented by an agreed case. We are not aware there is any valid objection to such a mode of proceeding, and have no difficulty in pronouncing the judgment in this form capable of revision.
3. -Coming then to the consideration of the principal question, we cannot concur in the view of the plaintiff, that it is settled by the former decision of Bank at Huntsville v. Robinson, 5 Ala. Rep. 623. The question was not there discussed by the court, but its decision turned on the ground that no notice was given to the bank, that the debtor assented to its modification of his proposals. In the piesentcase it appears the cashier of the bank was informed by the debtor, that ho intended to carry out the proposal as modified by the bank. The cashier of a bank is its executive officer, by whom in general its correspondence and intercourse with others is usually conducted, and a notice to him is substantially a notice to the corporation. [Everett v. U. S. Bank, 6 Porter, 166.] So far then as the assent of Patterson to the modification of his proposals by the bank, and a notice of that assent operates on ffie consummation of this agreement, we must consider it complete.
4. And this makes it essential to inquire — which we declined to do in the case just cited — what the agreement between the bank and its debtor was, and whether any, and what, legal obligations were imposed by it on either party. It is contended that Patterson, by it, was bound to deliver to the bank $48,000 in State bonds, and that the bank, on his default, was entitled to an action against him. We take a .different view entirely of what passed between him and the bank, and think that no obligation was imposed upon him, or intended to be assumed, to furnish the bonds. In our judg*¡, ment, this is apparent from his letters to the board of direct tors. He does not approach the bank as the holder of securities which he wishes to dispose of, and which the bank is ¡desirous to buy, or bound tp redeem at a future day, but as a *925debtor to the institution, absolutely unable to. meet his engagements, unless through the aid of means from his friends he may be enabled to obtain the control of State bonds. Even this cannot be done unless the bank will consent to furnish its bills to a larger amount than the sum for which he proposes to extinguish his debt. No fair construction of his proposals, in our judgment, can make it amount to an engagement on his part, absolutely and unconditionally to furnish $60,000, or indeed any other amount of State bonds. His object seems to have been — and none can doubt the fairness and integrity with which it was entertained — to try the market in New York, or elsewhere, to see if the monies to be paid out by the bank, would not furnish either the means or inducement to bond holders to make advantageous contracts with him. But «it seems evident to us, that he never contemplated that he was incurring, either for himself or for those who were to aid him, any responsibility in the event he did not succeed in procuring the bonds. In his second letter, when asking the bank to extend the time for him to endeav- or to procure the bonds, he says if he does not deliver them at the expiration of that time, he will ask no further indulgence. If bound to deliver them, his language instead of referring to proceedings or debts already due, would more appropriately have spoken of the mode of ascertaining and settling the damages resulting from his breach of an absolute agreement. We can come to no other conclusion that the proposition is to be regarded as one for love and favor to be extended to Patterson, by the bank, and that if his proposition had been accepted in the precise terms as made, that it was in contemplation of either party to bind him to procure the bonds. The modifications proposed by the bank merely lessened the amount to be paid in the event the bonds were produced, and fixed a period when its lenity should cease— without in any manner changing the legal features involved in the negotiation.
5. Having thus ascertained the proposal made by Pattter-son imposed no legal obligation on him, to furnish the bank with the bonds within the period fixed by the bank, it remains to inquire whether this circumstance prevented the negotiation from assuming the nature of a contract. That it *926does, we think will be evident when we advert to the rule, that all contracts must be mutually binding on each of the contracting parties, so that either may have an action on it. [Chitty on Con. 3.] The insufficiency of this agreement as a contract, will be apparent if we consider what would be the form of a declaration, if Patterson was suing the bank for refusing to receive the bonds after he had obtained the control of them. As the supposed contract is not under seal, or of that class which imports a consideration, it would be essential to state one. Considerations are said to be execjuled, executory, concurrent, and continuing, but as it is necessary for the defendant to show, the bank was bound when this agreement was made, it will be important only to consider how an executory and concurrent consideration must be stated. It is said, the consideration and the promise of the defendant, are two distinct things, and in order to show that the plaintiff possesses a right of action, he must aver the performance of the consideration on his part. [Chitty on PI. 324.] But here we may throw aside the want of performance, as that does not enter into the question whether a contract was actually made. As nothing was paid at the time of the agreement, the contract can only be sustained on the notion of mutual promises; that is, a promise by Patterson, on the one side, that he would furnish the bonds, and a promise by the bank to take and pay for them, at the stipulated time. The plaintiff’s promise, in such cases, may be said to be executed, but the thing to be done is executory. It is evident then, in all cases where the consideration is the mutual promise of each to the other, the promises must be concurrent, or obligatory on both at the same time, to make the promise of either binding, and they must be so stated in pleading. [Chitty on PL 325.] According to our judgment of the transaction between these parties, Patterson could not truly aver, that in consideration the bank had promised to accept and pay for the State bonds, he at the same time promised to purchase and deliver them. The view now taken is fully sustained by decisions which seem never to have been questioned. In Livingston v. Rogers, 1 Caines, 584, a declaration wns held bad, where one promise was laid as the consideration for another, but was said to be made afterwards, although *927on the same day. In Cook v. Oxley, 3 Term, 653, the defendant proposed to sell certain goods to the plaintiff and gave him until the hour of four in the afternoon of the same day to determine if he would take them. 'Within that time the plaintiff determined to purchase, and gave notice to the defendant, who refused to sell. The court would not hear argument from the defendant, and said the agreement was all on one side, and therefore nudum pactum. In Burnell v. Bicos, 4 John. 235, the defendant agreed, in writing, to give the plaintiff the refusal of a farm on certain terms. The court held, there was pro consideration for the defendant’s promise, because the plaintiff did not promise, and was under no obligation to take it. See also, Buller’s N. P. 146; Hobart, 88. That the want of mutuality in an agreement prevents it from being a contract is otherwise illustrated by decisions not so entirely apposite as those previously cited. Thus in Philpot v. Briant, 4 Bing. 717, an executrix promised a creditor, if he would delay proceedings, she would pay the interest of the debt from her own income j delay was given, and interest paid out of her private income, but this was held not to discharge the surety, as the promise to pay out of her own estate, was not binding on the executrix — it not being in writing. So in Lees v. Whitcomb, 5 Bing. 34, s. c, 3 C. & P. 289, an agreement to remain with A B two years, for the purpose of learning a trade, was held not to be binding for the want of an engagement on the part of A B to teach.
Having thus shown the agreement to have no binding effect on the bank, as a contract, it is unnecessary to pursue the examination of the case further, as this conclusion disposes of every question not otherwise settled. The result is, that the judgment must be reversed, and in conformity with the general practice of this court, the cause will be remanded.