dissenting.
I dissent. The association’s material promises as set forth in the contract were as follows: ‘ The association shall endeavor to market said sugar beets for the grower whenever and wherever a market may be found which in its judgment shall justify such marketing, and shall * * * make * * such other effort * * * for the purpose of enabling the grower to obtain a fair and profitable price for his beets, with the express aim of obtaining not less than a 50-50 contract, and upon the express .understanding and agreement that it shall not market the same unless a contract shall be obtained therefor, or for such portion thereof as it shall sell on what is known as a 50-50 basis, and the association shall not be liable for any damages that the grower may sustain, provided no sale of beets is made, if in the judgment of the association the price offered therefor is not satisfactory.”
Upon the part of the plaintiff the contract contained, among others, the following stipulation: “The grower further promises and agrees not to sell or grow or contract to grow any sugar beets in such territory directly or indirectly except under the terms of this contract and at a price approved by the association.”
I agree with the majority'of the court that if the association, having found a market at a price which in its judgment was satisfactory, refused to sell except upon *319terms which it had no legal right to impose; or if the disapproval by the association, of the price offered, was snch an unreasonable act as to amount to bad faith and abuse of trust on the part of the association, tips would constitute a breach of the contract entitling the grower to be released. I agree, further, with the view expressed in the majority opinion, that the contract right of the grower, to have a bona fide and diligent effort made by the association to obtain a satisfactory market for his product for the current year, could not, under the terms of the instant contract, be defeated or affected by considerations relating solely to subsequent years. If, therefore, a breach by the association, such as I have defined, was pleaded, sufficient evidence thereof adduced, and an affirmative finding made upon that issue, and if competent evidence to the contrary was not rejected by the trial court, the judgment should be affirmed.
The record, however, does not disclose such a situation. The complaint, instead of alleging that the price offered was satisfactory to the association, alleges the contrary. It does allege that the refusal and failure to market was “without reason, willful, arbitrary and in violation of the marketing contract.” What facts justify these epithets and this conclusion, the complaint does not say, unless it be because, as it is alleged, the offer was “fair and reasonable”; but, as later shown, the trial court refused to receive evidence to support the denial of this allegation. The learned trial judge found, as stated in the majority opinion, that the refusal either to market or to release the plaintiff was arbitrary and unreasonable. From this it is a fair inference that the arbitrariness was deemed by the court to inhere in the refusal of the association to release the plaintiff from his contract. Whether this is the correct interpretation of the finding or not, and although we add to it the general finding in favor of the plaintiff, it is impossible to be sure what phase or part of the association’s conduct was so adjudged to be arbitrary. The majority opinion, however, *320sees both the significance of, and the support for, this finding, in the fact that toward the latter part of March, 1928, the association submitted to the sugar company an offer to approve the sugar company’s price for 1928, conditioned, however, upon stipulations to be made by the sugar company for prices for the three subsequent years. This proposition, however, was rejected by the sugar company. It created no legal relations between the association and the sugar company, or between the sugar company and its members, and it altered none. The approval offered never became effective. When, some weeks after its rejection, the plaintiff demanded his release from the association, and instituted this action, the proposition which the association had so made, had taken its place along with the other incidents of the fruitless negotiations. That it had been made was of no more significance than the making of other offers and counteroffers. Its sole relation to the case was as an evidentiary circumstance. That it was nothing more is sufficiently shown by the omission of the plaintiff to plead it when stating the ultimate facts upon which he relied. Isolated and unexplained, it might have some tendency, as an admission by the association, to show that the price was in fact not unreasonable for 1928. Whether it had any tendency to show that the association regarded it as in itself satisfactory for the current year (which, as the majority opinion rightly holds, was the test) may be doubted, in view of the fact that by its terms it was made conditional upon concessions for the future. But when the proposition so submitted is examined in the light of its context; when the evidence shows that for weeks before making the proposition, the association had flatly rejected the sugar company price for 1928, and insisted upon a higher price, and that such rejection by the association was continued after its own offer of March had been refused; when it appears that the motion by which the association’s board made the latter offer, expressly denominated it a compromise proposition, and carefully *321avoided any declaration that the price was then acceptable to the association; when it is indisputably shown that it was a desperate expedient intended to avoid if possible the catastrophe of no contract at all for the 1928 crop, it seems, in my opinion, an undeserved return for the spirit of conciliation, to seize upon this guarded concession and hold it to be the exclusive and final expression of the attitude of the association. Compromise offers are not generally admitted at all as evidence, and certainly I can not regard this one as sufficient proof to sustain a finding of arbitrary action upon the part of the proponent of the offer. The majority opinion, however, must go further, and not only hold it sufficient evidence, but also, that it was conclusive. For it attaches no importance to the rejection by the trial court, of repeated offers of evidence, made by the defendant association, to show that it had never approved the 1928 price tendered by the sugar company, that such price was not fair and reasonable, and that it was below the 50-50 minimum prescribed by the grower himself in his contract. These rulings were invariably placed upon the ground that the evidence so offered was immaterial, although in a few instances other grounds were also assigned. The rejection of these proffers was clearly error, if the court was investigating the issue of abuse of discretion; and if it was not, the judgment can not be affirmed upon the ground that the court found such abuse to have occurred.
Holding these views regarding the ground upon which the "majority of the court affirm the judgment, I can not decline, notwithstanding the speed with which this case has been pressed and now disposed of, to reach conclusions upon the other questions presented, and which are necessarily involved in the decision of the cause. The serious constitutional questions regarding the Co-operative Marketing Act have already been determined by this court in the cases referred to in the majority opinion. Price fixing incidental to co-operative marketing through a common agent can not be obnoxious to the public policy *322established by that act. Such restriction of production as might occur under the contract here involved, is also but an incident of the co-operative system. The enhancing of the price to the grower is sought by collective bargaining, and not by creating a scarcity in the supply, for the latter condition could be- of no benefit to the growers, who, by their common factor, had declined to grow any beets at all, for what they deemed an inadequate return. The only federal constitutional question suggested relates to contracting away the right to follow a lawful pursuit. No case has been cited which holds, or even suggests, that an agreement to abstain for one year, from raising a specified crop, in aid of 'a design validated by statute, so much as approaches the line where the constitutional inhibition takes effect. Whether the powers conferred by the Co-operative Marketing Act may not be restrained if used to.oppress the consuming public, is a question not presented by the facts here, either pleaded or proven.
The contract binds the grower to sell only through the association. The only provision it makes for releasing him from this obligation is that for the giving of notice upon November of any year. The association does not agree to market at all events. It follows that the failure to market is neither a breach of the contract, nor the happening of a contingency upon which, either at planting time or later, the grower is, by contractual provision, at liberty to make his own sale. It is not pointed out in what respect the promise of the grower or that of the association, as embodied in the present contract, is either more or less than that authorized by the Co-operative Marketing Act; and the right of the association to refuse, in its lawful discretion, to sell, without thereby releasing the grower, is but the result of these promises.
I am of opinion that the judgment should be reversed, and I am authorized to say that Mr. Justice Butler concurs in the views herein expressed.