dissenting.
I cannot concur with the majority opinion. Its reasoning is that the defendant association’s action was arbitrary, because, though it had disapproved the sugar company’s' offer and averred that it still disapproved it as to price, it made a counter offer by way of compromise by which it proposed that it would accept and approve the. offer if the sugar company would at the same time enter into another contract for the three following years, since the association had no power to make a contract for future years. This argument I cannot follow. That 'the offer was unsatisfactory as to price was a good reason for rejecting it; if in the hope of gaining something for its constituents, the defendant, by way of compromise, as a compensation for inadequacy of price, asked something which it had no right to receive, how does that make arbitrary its rejection of a price which it in good faith believed inadequate? How can such a counter offer amount to a concession that the price was adequate?
If, as the majority opinion assumes, the defendant’s board had said, in effect: Your offer is reasonable but we will not accept it unless you extend it to cover three additional years, I agree that that would be beyond their powers and might justify the present judgment, but such a case is not in the record as I read it.
It is said, however, that, upon conflicting evidence, the court has found the offer of the sugar company to be reasonable and its rejection arbitrary; but it seems that much evidence and many offers of evidence to the effect that the offer was unreasonable and not 50-50 were rejected, such finding, therefore, cannot be held conclusive. This is made plainer by the fact, which is shown in several places in the record, that the court rejected this evidence on the theory that it was irrelevant because the defendant’s directors had no right to reject the best offer they could get even though such offer came from the one possible purchaser, and was in their opinion not reasonable *324and they hoped it was not the best they conld get. The findings do not conclude us if proper evidence on the point was rejected.
This conclusion would make it necessary to determine the main question in the case, which the conclusion of the majority rendered unnecessary, viz: Whether the district court was right in the proposition that the board was bound to sell by planting time or release all the contracts with the growers. I cannot assent to that. These contracts, it seems to me, are such as we have already approved in the cases cited in the majority opinion, and so may lawfully and therefore must be pursued with efficiency and construed to that end. We must say then, must we not, that the directors of defendant are not bound to sell at any price but may reject any and all offers till they get one which they think reasonable, even to the extent of failure to sell, so long as they act in good faith. The grower’s remedy is to quit the following November, according to the contract.
If we do not say this we leave the defendant with no power but to accept whatever the lone purchaser chooses to offer, i. e., with no power at all. This reduces a valid contract to a nullity and so cannot be right.
The constitutional questions raised in the briefs I regard as already settled by many decisions in this state and elsewhere. I think the restriction of production, when any exists, is a mere incident, arising out of the circumstances of that particular year, not inherent in the terms of the marketing contract nor in the defendant’s method of procedure.
It would follow that the judgment should be reversed.