(dissenting). With due deference to the opinion of the majority, the writer cannot concur therein. The real equities of this case seem to me to have been ignored and misplaced, while the decision in effect causes equity to work a forfeiture, something it abhors. This *127result has come from what seems to me to be the erroneous assumption that the contract in question was such in law, and created legal obligations, instead of it being plaintiff’s mere written offer, acceptable by its very terms only by performance and to the extent only of actual performance, and until performed wholly unilateral, and in any event terminable practically at the will of the parties, and therefore without performance, never legally obligating either party to abide by its terms; that consequently, in a strict legal sense, it had no lifetime nor term of existence, nor period for performance, and having none it could not lapse, and the failure to cancel it by either party could neither retroactively, as in effect held, nor otherwise, change the legal status of the parties. From the viewpoint of the writer the majority opinion has magnified mere privileges permitted into legal rights granted, and, from that as a basis, deduced resulting erroneously assumed obligations.
In the early summer of 1911, Gile worked his territory to procure purchasers, but a crop failure occurred in all the territory covered in his contract. Of the uselessness of expending effort in attempting sales under such circumstances defendant had notice, as is apparent from its telegram in evidence, dated July 18th, sent from Dakota to the plaintiff at Williston, and requesting him to come down there to make sales, where, because of rains, the prospects were better. It is true that the contract was never canceled, as plaintiff could have done at any time, according to its terms, on thirty days’ notice, if in fact it ever obligated plaintiff at all. But the reason for noncancelation fully appears in the testimony. Plaintiff testified: “I told Mr. Barrett at the time that 50 cars was an awful lot to contract for, and what an awful bunch of money; and he says: ‘You have a large territory, and if you need the cars, why you are sure you will get what is in the contract;’ ‘but,’ he says, ‘it doesn’t make any difference whether you take any of them or not,’ and the money was to be credited on the contract, as I ordered the cars in it, and the balance at the end of the season was to be turned over to me. He says: ‘I want to know that you are going to work that territory.’ ” Defendant led plaintiff to believe, at the very inception of the contract, that his money would be returned if the cars were not taken, and this belief was but reasonable; for under the terms of ^the contract itself the deposit was to be returned to plaintiff as a credit *128on cars as taken, and if the contract was canceled by defendant the money must also be returned. These provisions render the forfeiture clause of the contract ambiguous and susceptible of explanation by proof of an express oral construction given it by the parties contemporaneous with its execution and delivery, as to the return or non-return of the deposit money under the facts before us. This testimony is therefore admissible for its bearing upon the reason why the contract was allowed to lapse without cancelation, if importance be given the fact of failure to cancel. Not that this is important in the opinion of the writer. But it seems so much importance has been placed thereon in the majority opinion that apparently the decision has turned on plaintiff’s failure to exercise his right of cancelation, while the reason for such failure has been utterly ignored. It is evident that plaintiff relied implicitly upon receiving fair, instead of unconscionable, business treatment from defendant. That his deposit of $1,250 would be held back by it as forfeited, he evidently never contemplated for a moment.
The main opinion assumes, as a premise for the conclusion reached, that by this alleged contract plaintiff procured a right he did not prior thereto possess, to wit, the right to canvass and make sales in certain territory, and this presumably was of some value, and as such was a consideration sufficient to support the promise of plaintiff to canvass said territory and make sales therein, and as rendering the contract mutual, and as based upon a sufficient and adequate existing consideration. It is true that if there was a right granted by defendant to plaintiff, even though of little value, it will support the contract and amount to a valid consideration, the law not weighing the adequacy of consideration, but assuming that the parties have done so in entering into the agreement. But let us see whether at this time defendant parted plaintiff with anything of value, either as a forbearance or a grant. Assuming this contract to be wholly executory, which question assumed is treated later, its validity and binding force as a contract, dependent upon whether a valuable consideration has been passed, must be determined as of the time when it is made. See § 201, vol. 1, of Elliott on Contracts (1913) under a discussion of valuable consideration, reading: “Whether the contract rests upon a valuable consideration must be determined by the conditions as they exist when it is made, not as *129they may be at some subsequent time.” Citing Casserleigh v. Wood, 56 C. C. A. 212, 119 Fed. 308. Continuing from tbe same author: “In the absence of any sufficient consideration, the law supplies no means and affords no remedy to compel the performance of a simple executory agreement made without consideration; such a contract is a nude pact, and not binding in law, no matter how strongly it may appeal to the conscience.” Citing many cases. And this is but the gist of the reasoning of our own court in Knudtson v. Robinson, 18 N. D. 12, 118 N. W. 1051; and Silander v. Gronna, 15 N. D. 552, 125 Am. St. Rep. 616, 108 N. W. 544. With this in mind an examination of the contract entered into October 8, 1910, shows a delivery of a designated number of cars each month for nine months, beginning November, 1910, to be made by defendant. Had the contract expressly stipulated defendant should deliver, and had plaintiff given orders October 8th for the November instalment of three cars, they were not deliverable until such time in November as defendant should elect, and it could, therefore, have made delivery November 30th, and literally complied with the terms of the contract. Hence November 30th was the first date at which a delivery was due or defendant be in default, assuming the contract to be binding. Viewing it as of the date when the parties were entering into it, October 8th (the rule under above authorities), as a contract the first instalment of which was not to be performed until November 30th, or fifty-two days after the date of the agreement, with a reservation in defendant of “the right to change all prices and discounts mentioned in this contract upon two weeks’ notice in writing, duly mailed to the dealer” (¶ 3), and the other reservation to both parties that the contract (§ b. of ¶ 13) “may be canceled by either party upon thirty days’ written notice given to the other by registered letter, and such cancelation of this contract shall operate as a cancelation of all orders for automobiles . . . which have not been shipped prior to the date when such cancelation takes effect;” certainly on the signing of this agreement no obligation then arose against either party in favor of the other, as either could have forthwith canceled without assigning-cause, and such cancelation would have, according to its terms, canceled the entire so-called contract, including any privilege conferred by defendant upon plaintiff to canvass the territory or any part of it, as well as that portion of the agreement contemplating the purchase and sale of *13050 cars, including the three cars mentioned in the first instalment, lienee, in order for an obligation to arise under this instrument, it must be created from something taking place after it has been executed, and this in itself is the test of, as well as a conclusive demonstration of, want of mutuality of contract at the time of .the, execution and delivery of the instrument in question. Velie Motor Car Co. v. Klopmeier Motor Car Co. 114 C. C. A. 284, 194 Fed. 324; Oakland Motor Car Co. v. Indiana Automobile Co. 121 C. C. A. 319, 201 Fed. 499. All that defendant needed to do to thus avoid liability was to raise the prices in the first instance, under the third paragraph, to the full amount of the list price, and fail to fill the orders. Or it could have delayed filling the orders or transmitting them to the company, and given the thirty-day notice of cancelation required by ¶ 13, and unquestionably it would have been exonerated from all liability. Oakland Motor Car Co. v. Indiana Automobile Co. supra; Wheaton v. Cadillac Automobile Co. 143 Mich. 21, 106 N. W. 399. And what was true immediately after the signing of the contract was true throughout the entire so-called lifetime of it. 121 C. C. A. 319, 201 Fed. 499; Cummer v. Butts, 40 Mich. 322-325, 29 Am. Rep. 530, 114 C. C. A. 284, 194 Fed. 324. At no place in the contract has the defendant, obliga ted itself, in all events, to deliver plaintiff a single car; and, of course, it not being bound, the plaintiff is not. And it is immaterial whether this purported contract be considered one of agency or of purchase and sale, or both, of cars; it is equally unenforceable in either event at any time for want of mutuality of contract. 114 C. C. A. 284, 194 Fed. 324—331. The principle is well stated in the note to American Cotton Oil Co. v. Kirk, 15 C. C. A. 540, at page 543, et seq. “If there is no-promise at all by one party, or if, though both have promised something, the promise of one is void, the promise of the other has no consideration to support it, and is therefore void. This is what we mean-by ‘want of mutuality in contract.’ There can be no binding bilateral contract unless both of the parties are bound. There must be mutual binding promises, for mutuality of obligation is essential to supply the element of consideration. The rule of law that a promise is a good consideration for a promise requires that there should be an absolute mutuality of engagements, so that each party may have an action upon it or neither will be bound. Stiles v. McClellan, 6 Colo. 89. The promises, *131to constitute a consideration for each other, must be concurrent or become obligatory at the same time, otherwise each -will be without consideration at the time it is made, and both will therefore be nuda pacta. . . . Keep v. Goodrich, 12 Johns. 397; Tucker v. Woods, 12 Johns. 190, 7 Am. Dec. 305; Buckingham v. Ludlam, 40 N. J. Eq. 422, 2 Atl. 265; Utica & S. R. Co. v. Brinckerhoff, 21 Wend. 139, 34 Am. Dec. 220.” The right of arbitrary cancelation being reserved to both parties, neither was bound to perform. 121 C. C. A. 319, 201 Fed. 499; 114 C. C. A. 284, 194 Fed. 324; 40 Mich. 322, 29 Am. Rep. 530; American Agricultural Chemical Co. v. Kennedy, 103 Va. 171, 48 S. E. 868; McKinley v. Watkins, 13 Ill. 140; Houston & T. C. R. Co. v. Mitchell, 38 Tex. 85; § 10, under title “Contracts” in Decen. Dig. and §§ 21-40, under same title in Century Dig. citing many cases. Bor a case construing an automobile contract very similar to this, see Oakland Motor Car Co. v. Indiana Automobile Co. 121 C. C. A. 319, 201 Red. 499, which case would be parallel in fact had the plaintiff immediately made the sales and submitted the orders, and defendant company exonerated itself from liability by canceling under the stipulation contained in ¶ 13. It was there held that the right of arbitrary cancelation utterly destroyed the mutuality of contract, and left no cause of action against the distributers. Of course, if this contract fails to bind the distributers, defendant company, it fails in mutuality, and the dealer, Gile, is also absolved from liability. In the face of these provisions, neither party under this contract can be bound while the contract remains executory, as it is. See also Chicago & E. R. Co. v. Dane, 43 N. Y. 242; Maynard v. Brown, 41 Mich. 298, 2 N. W. 30; Stembridge v. Stembridge, 87 Ky. 91, 7 S. W. 611; Cool v. Cuningham, 25 S. C. 136; Atlee v. Bartholomew, 69 Wis. 43, 2 Am. St. Rep. 103, 33 N. W. 110; Lowber v. Connit, 36 Wis. 183; 9 Cyc. 327; Velie Motor Car Co. v. Klopmeier Motor Car Co. 114 C. C. A. 291, 194 Fed. 324. Under similar contentions made in the Yelie case to those here, that the right to canvass for sales enjoyed was valuable and remedied a lack of mutuality, the Bederal circuit court says: “Unless the defendant [occupying our plaintiff’s position] received a consideration for its undertakings by being given the exclusive right to sell within the given territory, the contract lacks mutuality. But it will be seen that such right, if any, was made subject to plaintiff’s right to arbitrarily, and without assign*132ing any cause, cancel the contract. Defendant might well decline to go to the expense and trouble of advertising and developing the territory named when its rights might at any time be terminated. Whatever construction should be given to the contract, whether it be one of sale or of agency, while it remains executory, there must be mutuality. . . . Taking into consideration the whole contract, we are of the opinion that by reason of want of mutuality the contract is, under the circumstances, unenforceable.” This contract before us is skilfully drawn with the very object of avoiding obligating defendant to do anything. Hence I assert with confidence that this so-called contract was not a contract in law when executed and delivered, as it was wholly wanting in consideration. Not that there was any failure of consideration, but an utter lack of consideration. If it is necessary to cite authority to sustain and distinguish between a failure of consideration and a lack of mutuality in contract, see the able discussion of the subject in §§ 301 — 308, vol. 1, of Page on Contracts, under the heading of “Apparent Considerations Which Are Nonexistent,” under which, at § 303, lack of mutuality is treated in part as follows: “Mutuality of obligation may be lacking in at least three different classes of cases. In the first there does not purport to be any right conferred or fore-borne in return for the promise; in the second there may be some apparently valid promise which, on analysis, does not by its terms fix any legal liability on the party making it; and, in the third, the promise offered as a consideration does by its terms attempt to fix a real liability, but by reason of some extrinsic fact, as incapacity of the party making the promise, the illegality of the thing promised, and the like, no enforceable liability attaches. These three classes of cases are not distinct in principle, but only in the manner in which the lack of consideration is more or less disguised.” The agreement in question is vulnerable under both first and second subdivisions. At § 304 the authority continues: “Where the parties assume to make a contract in which a promise is the consideration for a promise, and analysis shows that one of the promises does not impose any legal duty upon the party making it, such promise is not a consideration for the other promise. This is what is often meant by saying that promises must be mutual. Illustrations of this principle are an agreement that a manufacturer will sell all his goods in a given locality through A, who is to get a *133specified commission, A not agreeing to do anything with reference to such sales; an employer’s continuing a previous employment without being bound to continue it for any period of time, a promise to employ A where A is not bound to continue in the employment for any given period; a promise to do work assigned to the promisor where the adversary party is not bound by the promise to assign any work or to pay any compensation if no work is assigned,” analogous to the agreement in question, and giving similar examples with cases cited in abundance, among which are Peek v. Peek, 77 Cal. 106, 1 L.R.A. 185, 11 Am. St. Rep. 214, 19 Pac. 227; Vogel v. Pekoc, 157 Ill. 339, 30 L.R.A. 491, 42 N. E. 386; St. Louis, I. M. & S. E. Co. v. Matthews, 64 Ark. 398, 39 L.R.A. 467, 42 S. W. 902; which with notes support the text. See also Elliott on Contracts, §§ 208-210. Notice also in the text the significance of the words “rights,” “liabilities,” and “obligations,” • as distinguished from mere license, privilege, or permission, as these latter must be the basis for any claim of defendant under recoupment or equitable defense, whichever the claim for retention of the deposit may be held to be. If said instrument did not by its terms and at the time of its execution and delivery place plaintiff under a legal obligation or a legal duty, and at the same time grant to defendant a resulting right to be breached or violated by nonperformance, he has no standing in court on the defense made. This is but another way of stating that if there was no contract or contract obligation, defendant could not be damaged, as he had no legal right that plaintiff breached. If these fundamentals be true, all discussion in the opinion of failure of consideration is as needless as it is inaccurate; likewise all comment therein about the contract, being voidable, is misleading, because there was no contract; likewise the discussion at some length of the legality of the subject-matter of contract, to the effect that the subject-matter was one that could legally be contracted about, is beside the case, because no contract that the law recognizes as such was entered into in regard thereto. Equally inappropriate is the citation of authority on the right of rescission of contract, such as the cases cited of Ketchum v. Evertson, 13 Johns. 359, 7 Am. Dec. 384; Skudera v. Metropolitan L. Ins. Co. 17 Misc. 367, 39 N. Y. Supp. 1059; Peoples v. Evens, 8 N. D. 121, 77 N. W. 93; Fuller v. Rice, 52 Mich. 435, 18 N. W. 204; Pfeiffer v. Norman, 22 N. D. 168, 38 L.R.A.(N.S.) 891, 133 N. W. *13497; Martinson v. Rogan, 18 N. D. 467, 123 N. W. 285; Peoples v. Citizens’ Nat. L. Ins. Co. 11 Ga. App. 177, 74 S. E. 1034; Grove v. Hodges, 55 Pa. 504, 2 Mor. Min. Rep. 698, because of no contract existing to rescind.
Tbe decision of this case, in the first instance, turns upon whether a valid contract came into existence upon the signing and delivery of the only written agreement in the ease, depending in turn on whether there was then a want of mutuality of contract, the equivalent of whether any consideration ever passed for the purported agreement, that is, whether or not that agreement by its terms was wholly lacking in or devoid of consideration, and hence in law a nullity so far as the basing thereon of legal rights or obligations or resulting liabilities for breach are concerned. I believe the agreement, at the time of its execution and delivery, was not a contract, but a mere, offer, acceptable only by actual performance, and then only to the extent of such performance, inasmuch as the alleged contract is a separable one as to each monthly instalment of cars, taking the contention most favorable to defendant. “In some jurisdictions, however, such an agreement has been regarded not as an offer, but merely as an expression of willingness to negotiate. Where such theory obtains, sending in an order for goods at the specified rates is not an acceptance of a prior offer, but is itself an offer which may be rejected,” quoting from Page on Contracts, § 307 citing Page, Contr. § 26, and Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co. 57 L.R.A. 696, 52 C. C. A. 25, 114 Fed. 77. See also Hoffman v. Maffioli, 104 Wis. 630, 47 L.R.A. 427, 80 N. W. 1032; Weaver v. Burr (Weaver v. Gay) 31 W. Va. 736, 3 L.R.A. 94, 8 S. E. 743; Wardell v. William, 62 Mich. 50, 4 Am. St. Rep. 814, 28 N. W. 796.
On rehearing had, after the former holding of this court that the agreement was nonenforceable because of want of mutuality, respondent’s counsel contended that the executory contract, so-called, had become executed, and that inasmuch as the same had been suffered to lapse uncanceled it must be treated as a valid contract. This theory has been adopted in the majority opinion. Let us analyze it. Concede, as must be done under the unanimous holding of authority, that when signed this instrument did not amount to a contract for want of mutuality of consideration. . Manifestly lapse of time alone, with no per*135formanee, could not of itself remedy a lack of mutuality and so make a contract. But admittedly full performance would cure want of mutuality, and that which had not amounted to an executory contract would be considered as an executed one, and whereas, because of want of mutuality, no obligations had theretofore existed to perform, that defect may be eliminated by performance and the agreement become an executed contract. To what extent has this contract been executed? The answer necessitates a consideration of § 5365, Rev. Codes, 1905, defining executed and executory contracts, in connection with § 5311, further qualifying such statutory definition. The former section reads: “An executed contract is one the object of which is fully performed; all others are executory.” The object of contract, within § 5311, is defined to be: “The object of a contract is the thing which it is agreed on the part of the party receiving the consideration to do or not to do.” Our statutory definition of executed and executory contracts is identical with and was probably taken from what is now § 1661 of Kerr’s Anno. Codes of California. If we treat this agreement as containing both an agency and a sale feature, a contention most favorable to respondent’s contention, nevertheless we find that title has not passed to a single automobile or part concerned in such sale feature, and the transfer of title has been held to be the test in California under their Code, § 1661. Until transfer of title of the subject-matter of a contract of sale, the contract remains executory under said section. See Lassing v. James, 107 Cal. 348, 40 Pac. 534; Yukon River S. B. Co. v. Gratto, 136 Cal. 538, 69 Pac. 252; Cardinell v. Bennett, 52 Cal. 476. For the holdings and definitions of executed and executory contracts, see Knudtson v. Robinson, 18 N. D. 12, 118 N. W. 1051; Fox v. Kitton, 19 Ill. 519; Farrington v. Tennessee, 95 U. S. 679, 24 L. ed. 558; Fletcher v. Peck, 6 Cranch, 87-136, 3 L. ed. 162-177; Cincinnati, H. & D. R. Co. v. McKeen, 12 C. C. A. 14, 24 U. S. App. 218, 64 Fed. 36—46; Adams v. Reed, 11 Utah, 480, 40 Pac. 720; State v. Jersey City, 31 N. J. L. 575, 86 Am. Dec. 240; Keokuk v. Ft. Wayne Electric Co. 90 Iowa, 67, 57 N. W. 689; Watson v. Coast, 35 W. Va. 463, 14 S. E. 249. South Dakota, in construing this identical statute in Mettel v. Gales, 12 S. D. 832, 82 N. W. 181, says: “Executed contracts are not properly contracts at all. The term is used to signify rights in property which have been acquired by means of contract. The parties are no *136longer bound by a contractual tie.” See Words & Phrases, vol. 3, under titles “Executed Contract” and “Executory Contract.” It certainly cannot be seriously contended that this so-called contract is other than executory as to the purchase and sale of cars, as not a single car has been ordered or delivered or handled under it. Defendant complains that plaintiff has wholly defaulted in such respect, which alone is wholly inconsistent with a partial or complete performance. As to the agency feature of the purported contract, wherein, as stated in the majority opinion, plaintiff had agreed to “faithfully represent and advertise such automobiles, keep in stock at least one of Interstate manufacturer for the sole purpose of demonstrating and exhibiting to prospective purchasers,” etc., as well as the appointment of subagencies mentioned under paragraph one of the agreement, under the evidence the contract is equally totally unperformed. In the majority opinion the injury resulting from this default is made the sole basis for upholding the enforcement of the penalty, on the ground that damages suffered because of such defaults are so “impracticable or extremely difficult” to ascertain and assess, that they may be stipulated to be liquidated under the exception to the general rule for stipulated damages, and under § 5370, Rev. Codes 1905. In other words, if the majority holding is based upon the contract becoming executed by what was done by advertising and soliciting in attempting to carry it out, and in the absence of any sales, and it is conceded that no sales were made, then it is inconsistent with that portion of the main opinion necessary to support the liquidated damage feature, based not on performance, but on default in such respect. To be consistent the opinion throughout must treat this, the agency feature of the contract, as executory or executed, — one or the other. It cannot treat it as it has, as executed, for the purpose of curing a lack of mutuality in contract, and at the same time, as a peg upon which to hand a claim of liquidated damages, find it executory. If executed as to its agency provisions, an utter impossibility, of course, without it being executed as to sales, as one feature cannot be separated from the other, no damage for failure to establish agencies and advertise has accrued, because the agencies must have been established and the advertising must have been done. However, under the evidence and the pleadings as well, the agency feature as well as the sale part of the so-called contract has never in any particular been carried out, un*137less we say that a mere good-faith endeavor, with nothing really accomplished toward actual performance, amounts to a performance, and renders an executory contract executed, and thereby renders what was not a contract, because of want of mutuality, and executed contract, under which the law will measure the rights arising from acts done, not mere promises to perform. It must be conceded that the law is that performance under a unilateral contract can bind for any purpose only to the extent of the performance had. This seems to be the undisputed doctrine of the authorities. Gray v. Hinton, 2 McCrary, 167, 7 Fed. 81; American Refrigerator Transit Co. v. Chilton, 94 Ill. App. 6; Morrow v. Southern Exp. Co. 101 Ga. 810, 28 S. E. 998; Dayton, W. & X. Turnp. Co. v. Coy, 13 Ohio St. 84. In the latter case the party occupying the defendant’s position here actually had the equities with him, but the court said, in replying to the same contention here made, that the parties had treated the contract as valid, as follows: “We have been asked by the counsel for the plaintiff if we found there was no mutuality in the contract, still to look at the conduct of the defendant, — his purpose in the execution of the instrument. But we do not see how we can look at the conduct of the defendant with any other view than to ascertain whether he has entered into a contract. In such a case as this it is not our province to decide as to the propriety of the conduct of the party. We have only to inquire whether he has incurred a legal obligation.”
That this contract is not executed, but executory, is squarely decided by Knudtson v. Robinson, 18 N. D. 12, 118 N. W. 1051, in an opinion by Judge Morgan, in an action for specific performance where mutuality of contract and alleged performance were presented for determination. It was there contended that by an offer of performance and tender “the nonmutuality of the contract is rendered immaterial.” The court held: “Since Robinson could not enforce specific performance against Knudtson under the facts of this case, specific performance could not be enforced by Knudtson against Robinson. There must be mutuality of obligation and remedy between the parties before specific performance is enforceable against either, except in cases where there has been performance by the party seeking to enforce specific performance. . . . ‘Performance’ is a word of settled meaning, and means the doing or completing of an act; ‘an offer to perform’ and *138‘performance’ are not synonymous in meaning. Without performance the party seeking the enforcement of the contract is not within the provisions of the statute when he has tendered, performance or simply shown a willingness to perform. Crumbly v. Bardon, 70 Wis. 385, 36 N. W. 19; Lattin v. Hazard, 91 Cal. 87, 27 Pac. 515.” It is significant that not a single authority is cited on this question in the majority opinion, which does not even discuss the statutory provisions above quoted, but evidently relies wholly upon the effect of a lapse of time with no principle of estoppel involved, making a contract out of something that, up until the last day of the so-called period of time mentioned in the purported agreement, was not a contract, but unenforceable as wholly' lacking in mutuality of contract. [Reduced to a nut shell, these parties have signed a written instrument, binding neither, granting certain privileges but neither obligating the other, and therein stated that such privileges shall remain, subject to prior arbitrary cancelation, from October 8, 1910, to September 1, 1911. Nothing was done toward performance except useless effort accomplishing nothing toward actual performance. After September 1, 1911, that which was prior to that time merely written permission or privilege, by lapsing and becoming nonexistent, has by something little short of legerdemain ripened into a legal contract. With due respect to the opinion of a majority of my associates, it is impossible for me to see how this result can be achieved under the evidence in this case, and conform to settled principles and fundamentals.
My contentions are summarized into the following statement: When the purported contract is analyzed with reference to these fundamental principles of contract, under all authorities and under the stipulated terms and conditions of the purported contract itself, I can reach no other conclusion than that the written instrument, when executed and delivered, was wholly lacking in mutuality of contract in that no consideration passed, and that no obligations of either party to the other were created, inasmuch as neither party procured under this instrument any legal right, or assumed any legal duty or obligation to the other; that lapse of time alone could not in such respect change the legal status of the parties in the slightest degree, no principle of estoppel being involved; that performance, on the contrary, could bring into existence for the first time between these parties, so far as this instrument is con*139cerned, rights and resulting legal obligations, but only to the extent of performance, partial or full; that a part performance could bind neither party to make full performance, but would obligate the parties so far as rights arose under such part performance, as for example, the delivery was made in good faith by plaintiff to sell cars, with the intent on his order would obligate him to pay for them, but would not obligate him as to any of the remaining 41 cars mentioned in the instrument, and a similar delivery and acceptance of 30 cars would bind the parties to that extent, but no further. But under the evidence as well as the pleadings no performance whatever has been had. Instead, an attempt was made in good faith by plaintiff to sell cars, with the intent on his part that he would perform this so-called contract, and defendant had some ears on hand with which to have filled any order for cars he might have submitted, and no cancelation of the contract was had, but the same permitted by sufferance of the parties to remain uneaneeled until it lapsed. Under these circumstances I can conceive of no legal principle which cures the want of mutuality of contract and creates a contract with its resulting obligations. Defendant was never legally bound to deliver cars or do anything else, and plaintiff was never bound to sell cars or do anything else, and hence he was never legally obligated to defendant. With no obligation or right possessed by defendant and ■owing it by plaintiff, there was nothing to breach upon which damage can be predicated. Under these circumstances the defendant has received from plaintiff this deposit of $1,250, for which he has given no consideration whatever; nor has he parted therefor to plaintiff with anything of value in the eye of the law, nor has he forborne anything because he has not obligated himself to forbear. Instead, he stands before a court shorn of a defense. His purported defense, at the most, epitomized, is equivalent to asserting that in return for this money he merely permitted plaintiff to believe himself possessed of a right to canvass for and perhaps sell cars in certain territory, while in law he never gave him such a right nor parted with such right, and at any time he could defeat plaintiff’s attempt at sales, at his whim or caprice, by refusing to deliver the cars plaintiff was attempting to sell. Such an unconscionable plea, which in justice at least should be unavailing, is by the majority opinion upheld, and a forfeiture enforced of what is ■clearly a penalty. As stated in the opinion, this action for money had *140and received possesses equitable characteristics, and to that extent the plaintiff is in a court of equity, a court of conscience, and this as a reviewing court is the same. Would any member of this bench consider it a conseionable transaction with a fellow man to forfeit, or, to use the softer word, retain a like amount of another’s money under the same circumstances as disclosed in this record ? The answer to this must suffice to establish the forfeit as either conseionable or unconscionable, equitable or inequitable, from the standpoint of which we must view plaintiff’s attempted recovery as for money had and received, and alleged to have been received under such circumstances that equity and good conscience should order its return. Fair dealing must not only brand plaintiff’s position as conseionable and right, but defendant’s as unconscionable, if not worse. IJnder the law and the fact plaintiff should recover.
Burice, J. I concur in the foregoing dissent.