The following opinion on rehearing was filed June 7, 1907. Judgment of reversal adhered to:
1. Contract: Consideration. An agreement without benefit, advantage or detriment to either party is without consideration and not enforceable.
*3082. Mutual- promises, not for a common object or purpose and not mutually advantageous or detrimental, are without consideration and not enforceable.Ames, 0.
This case has been submitted upon realignment from a former decision pursuant to an opinion by Mr. Commissioner Jackson, ante, p. 303. No new or additional propositions of law are urged, and the recital of facts contained in the former opinion is accepted by counsel as sufficiently complete and accurate, so that a restatement of them is at present uncalled for. The principal contention is that this court erred in holding that the agreement copied in a former opinion lacks a consideration requisite to render it obligatory as a contract. Counsel urges that an adequate consideration is furnished by an obligation assumed by the plaintiff to exhaust by suits the corporate assets of the brick company for the satisfaction of the claim of the former. But we do not find a promise, expressed or implied, to that effect in the agreement. The promise, although by its terms requiring acceptance by the plaintiff and, in fact, expressly accepted by it, is, notwithstanding, wholly unilateral by the subscribing stockholders. The document would not have been changed in legal effect if it had been made to read: “Although the First National Bank and the Cass County Bank, which are creditors of the Plattsmouth Brick and Terra Cotta- Manufacturing Company, have and can acquire, by reason of that fact, no legal claim against us or any of us, who are stockholders of that company, yet, if said banks, or either of them, shall see fit to pursue their or its legal remedies against the company to the exhaustion ’of its assets, we will contribute proportionally to our holdings of stock to the payment of so much of such indebtedness as shall not be satisfied by the means aforesaid.”
It is obvious that, tested by the rule announced by this court in Armann v. Buel, 40 Neb. 803, a promise in that form, or substantially to that effect, can have no legal *309force. It is left, as it was, before the agreement was made, a matter of clioice to the creditor whether it will pursue the course suggested, and a matter of indifference, as respects stockholders’ liability, whether it does so or not. The creditor promises no suspension or forbearance of any legal right or remedy which it has, or is capable of acquiring, against either the corporation or its stockholders, or any of them, and as a corollary the subscribers to the agreement obtained no benefit or advantage by their promise.
The second proposition urged by counsel, and also discussed and decided in the former opinion, that the agreement is enforceable as expressing mutual promises by the subscribers to contribute toward the attainment of a common object, seems to us to be ill founded, for the reason that it is apparent, as well from the nature of the transaction as from the language of the instrument, that the object that the subscribers had in view was to make provision for the satisfaction of supposed legal obligations against them severally which, in fact, did not exist. The object was not to accomplish a mutual and common purpose, but to be discharged from supposed separate and several personal liabilities of each. If such liabilities had existed, the stockholders’ obligation as such would have continued unaffected, and could have been enforced, and could have been satisfied, in exactly the same way and for precisely the same amount in the presence as in the absence of the agreement, and against such liability the agreement would have provided no indemnity, so that the essential element of mutuality is wholly lacking.
We recommend, therefore, that the former decision of this court be adhered to.
Jackson and Calkins, CO.-, concur.By the Court: For the reasons stated in the foregoing opinion, the former decision of this court is adhered to.
Reversed.