(dissenting to the revised opinion).
Appellant’s motion for a rehearing on the decision handed down December 13, 1956, 304 P.2d 384, was granted and the majority have this day rendered an amended opinion arriving at the same conclusion but upon a different or an additional ground.
*74I still am of the view that to affirm the judgment of the lower court is unwarranted, and, hence, this dissent. The original majority opinion, as I see it, was predicated upon the theory that Tennent had by his silence assented to the resubmission of his original offer and that this, coupled with other conduct, constituted an estoppel to deny resuscitation of his offer to the vendor. The present majority decision abandons (in part at least) this premise and sustains the judgment below upon a theory (rejected in the first opinion) that Tennent, by the one and only instrument signed by him, had given to Leary (the broker) an irrevocable option for two days in which to procure the unequivocal acceptance by Kesicki (the seller) of his original offer to purchase. In order to avoid being repetitious I reiterate and adopt those portions of my former dissent insofar as they are now applicable to this amended decision.
These additional reasons are advanced as a basis for the instant dissent. Reading the material portion of the written instrument relied upon, it is apparent that it attempted to embrace both an irrevocable contract for two days with Leary and an irrevocable offer to Kesicki (and this is the unequivocal position of appellees’ briefs). The latter is clearly an abortive attempt to create a contractual obligation by mere denomination as such. Nowhere is it shown that any consideration was given to support this so-called “option”, for clearly it must flow from Kesicki, as the option holder, to Tennent, the alleged option giver. See, Corbin on Contracts, Vol. 1, section 152. I accept the majority view that Kesicki’s counter-offer was a rejection of Tennent’s offer. I believe that a careful reading of the authority given Leary will disclose it related solely to the original offer; and, if in law that offer had been rejected, Leary’s authority was then nothing more than an empty shell for there was no longer an offer of which he could “obtain the seller’s acceptance”. If so limited, whether there was consideration for the “irrevocable” contract given Leary is immaterial. Thus, there was no “authority” of an agent as would satisfy the Statute of Frauds, section 58-101, subd. 6, A.C.A.1939.
However, if it could be said that the language of the' instrument was sufficient to confer upon Leary authority to “close the sale”, that power was effectively revoked by the acts and conduct of Tennent at Leary’s office. This action was a legal right residing in appellant for the reason that the language of the offer did not in law give to Leary an irrevocable contract to act for two days. See, 12 Am.Jur., Contracts, section 32, and 17 C.J.S., Contracts, § 50a. The promise of Tennent was purely unilateral; such a promise is binding here only if an executed consideration (or cash) is exchanged for it. See Corbin, supra, pp. 497, 501, and 12 Am.Jur., supra. The rec*75ord discloses that those acts cited in the majority opinion as constituting consideration were all performed after the signing of the offer by Tennent and, therefore, could not constitute an executed consideration. There was no “adequate consideration to support such agreement.” Certainly this at least should preclude any recovery in favor of Leary.
On this matter of agency, as I pointed out before, Leary is a mere middleman; he was employed by Kesicki as his agent to sell this property; he found the Tennents and took from them the instrument herein relied upon. Leary’s compensation was to be derived through Kesicki; yet in the instant case, without any express authorization from Tennent to do so, he purportedly closed “the deal” with Kesicki, Leary, at least, knowing full well that Tennant had not, as of that time, obtained either the assent of his wife or the approval of his lawyer.
Furthermore, even assuming Leary and Kesicki were entitled to recover, which I deny, it shocks my conscience to permit them to declare a forfeiture of all the earnest money paid by Tennents, because within a matter of a short time thereafter it appears the same property was resold to another party for practically the same amount asked of the Tennents, with another broker’s fee going to Leary. The amount forfeited ($1,500) was in my opinion so grossly excessive as to be wholly disproportionate to the loss suffered.
For all of the reasons stated in this and the previous dissent I would reverse the judgment.
LA PRADE, J., concurs in this dissent.