SCHULTZ, Justice.

The determinative issue in this appeal is whether good faith forbearance to litigate a claim, which proves to be invalid and unfounded, is sufficient consideration to uphold a contract of settlement. The dis *733 trict court determined, as a matter of law, that consideration for the alleged settlement was lacking because the forborne claim was not a viable cause of action. We reverse and remand.

On October 29, 1981, Dale Dyer, an employee of National By-Products, lost his right foot in a job-related accident. Thereafter, the employer placed Dyer on a leave of absence at full pay from the date of his injury until August 16, 1982. At that time he returned to work as a foreman, the job he held prior to his injury. On March 11, 1983, the employer indefinitely laid off Dyer.

Dyer then filed the present lawsuit against his employer claiming that his discharge was a breach of an oral contract. He alleged that he in good faith believed that he had a valid claim against his employer for his personal injury. Further, Dyer claimed that his forbearance from litigating his claim was made in exchange for a promise from his employer that he would have lifetime employment. The employer specifically denied that it had offered a lifetime job to Dyer after his injury.

Following extensive discovery procedures, the employer filed a motion for summary judgment claiming there was no genuine factual issue and that it was entitled to judgment as a matter of law. The motion was resisted by Dyer. The district court sustained the employer’s motion on the basis that: (1) no reciprocal promise to work for the employer for life was present, and (2) there was no forbearance of any viable cause of action, apparently on the ground that workers’ compensation provided Dyer’s sole remedy.

On appeal, Dyer claims that consideration for the alleged contract of lifetime employment was his forbearance from pursuing an action against his employer. Accordingly, he restricts his claim of error to the second reason advanced by the district court for granting summary judgment. Summary judgment is only proper when there is no genuine issue of any material fact. Iowa R.Civ.P. 237(c). Dyer generally contends that an unresolved issue of material fact remains as to whether he reasonably and in good faith forbore from asserting a claim against his employer and his coemployees in exchange for the employer’s alleged promise to employ him for life. Specifically, he asserts that the trial court erred because: (1) the court did not consider the reasonableness and good faith of his belief in the validity of the claim he forbore from asserting, and (2) the court considered the legal merits of the claim itself which Dyer forbore from asserting.

The employer, on the other hand, maintains that workers’ compensation 1 benefits are Dyer’s sole remedy for his injury and that his claim for damages is unfounded. It then urges that forbearance from asserting an unfounded claim cannot serve as consideration for a contract. For the purpose of this discussion, we shall assume that Dyer’s tort action is clearly invalid and he had no basis for a tort suit against either his employer or his fellow employees. We recognize that the fact issue, as to whether Dyer in good faith believed that he had a cause of action based in tort against the employer, remains unresolved. The determinative issue before the district court and now on appeal is whether the lack of consideration for the alleged promise of lifetime employment has been established as a matter of law.

Preliminarily, we observe that the law favors the adjustment and settlement of controversies without resorting to court action. Olson v. Wilson & Co., 244 Iowa 895, 899, 58 N.W.2d 381, 384 (1953). Compromise is favored by law. White v. Flood, *734 258 Iowa 402, 409, 138 N.W.2d 863, 867 (1965). Compromise of a doubtful right asserted in good faith is sufficient consideration for a promise. Id.

The more difficult problem is whether the settlement of an unfounded claim asserted in good faith is consideration for a contract of settlement. Professor Corbin presents a view favorable to Dyer’s argument when he states:

[F]orbearance to press a claim, or a promise of such forbearance, may be a sufficient consideration even though the claim is wholly ill-founded. It may be ill-founded because the facts are not what he supposes them to be, or because the existing facts do not have the legal operation that he supposes them to have. In either case, his forbearance may be a sufficient consideration, although under certain circumstances it is not. The fact that the claim is ill-founded is not in itself enough to prevent forbearance from being a sufficient consideration for a promise.

1 Corbin on Contracts § 140, at 595 (1963). Further, in the same section, it is noted that:

The most generally prevailing, and probably the most satisfactory view is that forbearance is sufficient if there is any reasonable ground for the claimant’s belief that it is just to try to enforce his claim. He must be asserting his claim “in good faith”) but this does not mean he must believe that his suit can be won. It means that he must not be making his claim or threatening suit for purposes of vexation, or in order to realize on its “nuisance value.”

Id. § 140, at 602 (emphasis added). Indeed, we find support for the Corbin view in language contained in our cases. See White v. Flood, 258 Iowa at 409, 138 N.W.2d at 867 (“[C]ompromise of a doubtful right asserted in good faith is sufficient consideration for a promise.”); In re Estate of Dayton, 246 Iowa 1209, 1216, 71 N.W.2d 429, 433 (1955) (“The good faith assertion of an unfounded claim furnishes ample consideration for a settlement.”); Messer v. Washington National Insurance Co., 233 Iowa 1372, 1380, 11 N.W.2d 727, 731 (1943) (“[I]f the parties act in good faith, even when they know all the facts and there is promise without legal liability on which to base it, the courts hesitate to disturb the agreements of the parties .... ”); Lockie v. Baker, 206 Iowa 21, 24, 218 N.W. 483, 484 (1928) (Claim settled, though perhaps not valid, must have been presented and demanded in good faith.); First National Bank v. Browne, 199 Iowa 981, 984, 203 N.W. 277, 278 (1925) (Settlement of a disputed or doubtful claim in good faith is sufficient consideration for a compromise, even though judicial investigation might show claim to be unfounded.).

The Restatement (Second) of Contracts section 74 (1979), supports the Corbin view and states:

Settlement of Claims

(1) Forbearance to assert or the surrender of a claim or defense which proves to be invalid is not consideration unless

(a) the claim or defense is in fact doubtful because of uncertainty as to the facts or the law, or

(b) the forbearing or surrendering party believes that the claim or defense may be fairly determined to be valid.

Comment:

b. Requirement of good faith. The policy favoring compromise of disputed claims is clearest, perhaps, where a claim is surrendered at a time when it is uncertain whether it is valid or not. Even though the invalidity later becomes clear, the bargain is to be judged as it appeared to the parties at the time) if the claim was then doubtful, no inquiry is necessary as to their good faith. Even though the invalidity should have been clear at the time, the settlement of an honest dispute is upheld. But a mere assertion or denial of liability does not make a claim doubtful, and the fact that invalidity is obvious may indicate that it was known. In such cases Subsection (l)(b) requires a showing of good faith.

(Emphasis added.) See also 15 Am.Jur.2d Compromise and Settlement § 16, at 787

*735 (1976); 15A C.J.S. Compromise and Settlement § 11(b), at 206 (1967), quoted in Messer v. Washington National Insurance Co., 233 Iowa at 1380, 11 N.W.2d at 731.

However, not all jurisdictions adhere to this view. Some courts require that the claim forborne must have some merit in fact or at law before it can provide consideration and these jurisdictions reject those claims that are obviously invalid. See Bullard v. Curry-Cloonan, 367 A.2d 127, 131 (D.C.App.1976) (“[A]s a general principle, the forbearance of a cause of action advanced in good faith, which is neither absurd in fact nor obviously unfounded in law, constitutes good and valuable consideration.”); Frasier v. Carter, 92 Idaho 79, 437 P.2d 32, 34 (1968) (The forbearance of a claim which is not utterly groundless is sufficient consideration to support a contract.); Charles v. Hill 260 N.W.2d 571, 575 (Minn.1977) (“[A] wholly baseless or utterly unfounded claim is not consideration for a contract.”); Agristor Credit Corporation v. Unruh, 571 P.2d 1220, 1224 (Okla.1977) (In order to constitute consideration for a contract, “claim forborne must be reasonably doubtful in law or fact.”); see generally 15A C.J.S. Compromise and Settlement § 10, at 201 (There are many decisions holding that a claim which is entirely baseless does not afford consideration for a compromise.).

In fact, we find language in our own case law that supports the view which is favorable to the employer in this case. See Vande Stouwe v. Bankers’ Life Co., 218 Iowa 1182, 1190, 254 N.W. 790, 794 (1934) (“A claim that is entirely baseless and without foundation in law or equity will not support a compromise.”); Peterson v. Breitag, 88 Iowa 418, 422-23, 55 N.W. 86, 88 (1893) (“It is well settled that there must at least be some appearance of a valid claim to support a settlement to avoid litigation.”); Tucker v. Ronk, 43 Iowa 80, 82 (1876) (The settlement of an illegal and unfounded claim, upon which no proceedings have been instituted, is without consideration.); Sullivan v. Collins, 18 Iowa 228, 229 (1869) (A compromise of a claim is not a sufficient consideration to sustain a note, when such claim is not sustainable in law or in equity, or, at least doubtful in some respect.). Additionally, Professor Williston notes that:

While there is a great divergence of opinion respecting the kind of forbearance which will constitute consideration, the weight of authority holds that although forbearance from suit on a clearly invalid claim is insufficient consideration for a promise, forbearance from suit on a claim of doubtful validity is sufficient consideration for a promise if there is a sincere belief in the validity of the claim.

1 Williston on Contracts § 135, at 581 (3rd ed. 1957) (emphasis added).

We believe, however, that the better reasoned approach is that expressed in the Restatement (Second) of Contracts section 74. Even the above statement from Willi-ston, although it may have been the state of the law in 1957, is a questionable assessment of the current law. In fact, most of the cases cited in the cumulative supplement to Williston follow the “good faith and reasonable” language. 1 Williston on Contracts § 135B (3rd ed. 1957 & Supp. 1985). Additionally, Restatement (Second) of Contracts section 74 is cited in that supplement. Id. As noted before, as a matter of policy the law favors compromise and such policy would be defeated if a party could second guess his settlement and litigate the validity of the compromise. The requirement that the forbearing party assert the claim in good faith sufficiently protects the policy of law that favors the settlement of controversies. Our holdings which are to the contrary to this view are overruled.

In the present case, the invalidity of Dyer’s claim against the employer does not foreclose him, as a matter of law, from asserting that his forbearance was consideration for the alleged contract of settlement. However, the issue of Dyer’s good faith must still be examined. In so doing, the issue of the validity of Dyer’s claim should not be entirely overlooked:

Although the courts will not inquire into the validity of a claim which was *736 compromised in good faith, there must generally be reasonable grounds for a belief in order for the court to be convinced that the belief was honestly entertained by the person who asserted it. Sufficient consideration requires more than the bald ascertion by a claimant who has a claim, and to the extent that the validity or invalidity of a claim has a bearing upon whether there were reasonable grounds for believing in its possible validity, evidence of the validity or invalidity of a claim may be relevant to the issue of good faith.

15A Am.Jur.2d Compromise and Settlement § 17, at 790. We conclude that the evidence of the invalidity of the claim is relevant to show a lack of honest belief in the validity of the claim asserted or forborne.

Under the present state of the record, there remains a material fact as to whether Dyer’s forbearance to assert his claim was in good faith. Summary judgment should not have been rendered against him. Accordingly, the case is reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Andrews, Oh. J.

The contract between a maker or indorser of a promissory note and the payee forms no exception to the general rule that a promise, not supported by a consideration, is nudxvm paobum. The law governing commercial paper which precludes an inquiry into the consideration as against tona fide holders for value before maturity, has no application where the suit is between the original parties to the instrument. It is undisputed that the demand note upon which the action was brought was made by the husband of the defendant and indorsed by her at his request and delivered to the plaintiff, the payee, as security for an antecedent debt owing by the husband to the plaintiff. The debt of the husband was past due at the time, and the only consideration for the wife’s indorsement, which is or can be claimed, is that as part of the transaction there was an agreement by the plaintiff when the note was given to forbear the collection of the debt, or a request for forbearance, which was followed by forbearance for a period of about two years subsequent to the giving of the note. There is no doubt that an agreement by the creditor to forbear the collection of a debt presently due is a good consideration for an absolute or conditional promise of a third person to pay the debt, or for any obligation he may assume in respect thereto. Hor is it essential -that the creditor should bind himself at the time to forbear collection or to give time. If he is requested by his debtor to extend the time, and a third person undertakes in consideration of forbearance being given to become liable as surety or otherwise, and the creditor does in fact forbear in reliance upon the undertaking, although he enters into no enforcible agreement to do so, his acquiescence in the request, and an actual forbearance in consequence thereof for a reasonable time, furnishes a good consideration for the col *395 lateral undertaking. In other words, a request, followed by performance is sufficient, and mutual promises at the time are not essential, unless it was the understanding that the promisor was not to be bound, except on condition that the other party entered into an immediate and reciprocal obligation to do the thing requested. (Morton v. Burn, 7 A. & E. 19; Wilby v. Elgee, L. R., 10 C. P. 497; King v. Upton, 4 Maine, 387; Leake on Con. p. 54; Am. Lead. Cas. vol. 2, p. 96 et seq. and cases cited.) The general rule is clearly, and. in the main accurately, stated in the note to Forth v. Stanton (1 Saund. 210, note b). The learned reporter says: “ And in all cases of forbearance to sue, such forbearance must be either absolute or for a definite time, or for a reasonable time ; forbearance for a little, or for some time, is not sufficient.” The only qualification to be made is that in the absence of a specified time a reasonable time is held to be intended. (Oldershaw v. King, 2 H. & N. 517; Calkins v. Chandler, 36 Mich. 320.) The. note in question did not in law extend the payment of the debt. It was payable on demand, and although being payable with interest it was in form consistent with an intention that payment should not be immediately demanded, yet there was nothing on its face to prevent an immediate suit on the note against the maker or to recover the original debt. (Merritt v. Todd, 23 N. Y. 28; Shutts v. Fingar, 100 id. 539.)

In the present case the agreement made is not left to inference, nor was it a case of request to forbear, followed by forbearance, in pursuance of the request, without any promise on the part of the creditor at the time. The plaintiff testified that there was an express agreement on his part to the effect that he would not pay the note away, nor put it in any bank for collection, but (using the words of the plaintiff) “ I will hold it until such time as I want my money, I will make a demand on you for it.” And again: “No, I will keep it until such time as I want it.” Upon this alleged agreement the defendant indorsed the note. It would have been no violation of the plaintiff’s promise if, immediately on receiving *396 the note, he had commenced suit upon it. Such a suit would have been an assertion that he wanted the money and would have fulfilled the condition of forbearance. The debtor and the defendant, when they became parties to the note, may have had the hope or expectation that forbearance would follow, and there was forbearance in fact. But there was no agreement to forbear for a fixed time or for a reasonable time, but an agreement to forbear for such time as the plaintrS should elect. The consideration is to be tested by the agreement, and not by what was done under it. It was a case of mutual promises, and so intended. We think the evidence failed to disclose any consideration for the defendant’s indorsement, and that the trial court erred in refusing so to rule.

The order of the General Term reversing the judgment should be affirmed, and judgment absolute directed for the defendant on the stipulation, with costs in all courts.

All concur, except Gray and Bartlett, JJ., not votings and Haight, J., not sitting.

Ordered accordingly.

SPENCE, J.

Plaintiff brought this action for damages after defendant allegedly breached a contract by failing to convey her real property in accordance with the terms of a deposit receipt which the parties had executed. After a trial without a jury, the court concluded that the agreement was “illusory” and lacking in “mutuality.” From the judgment accordingly entered in favor of defendant, plaintiff appeals.

Plaintiff was a real estate developer. He was planning to construct a shopping center on a tract adjacent to defendant’s land. For several months, a real estate agent attempted to negotiate a sale of defendant’s property under terms agreeable to both parties. After several of plaintiff’s proposals had been rejected by defendant because of the inadequacy of the price offered, defendant submitted an offer. Plaintiff accepted on the same day.

The parties’ written agreement was evidenced on a form supplied by the real estate agent, commonly known as a deposit receipt. Under its terms, plaintiff was required to deposit $1,000 of the total purchase price of $57,500 with the real estate agent, and was given 120 days to “examine the title and consummate the purchase.” At the expiration of that period, the balance of the price was “due and payable upon tender of a good and sufficient deed of the property sold.” The concluding paragraph of the deposit receipt provided: “Subject to Coldwell Banker & Company obtaining leases satisfactory to the purchaser.” This clause and the 120-day period were desired by plaintiff as a means for arranging satisfactory leases of the shopping center buildings prior to the time he was finally committed to pay the balance of the purchase price and to take title to defendant’s property.

Plaintiff took the first step in complying with the agreement by turning over the $1,000 deposit to the real estate agent. While he was in the process of securing the leases and before the 120 days had elapsed, defendant’s attorney notified plaintiff that defendant would not sell her land under the terms *122 contained in the deposit receipt. Thereafter, defendant was informed that satisfactory leases had been obtained and that plaintiff had offered to pay the balance of the purchase price. Defendant failed to tender the deed as provided in the deposit receipt.

Initially, defendant’s thesis that the deposit receipt constituted no more than an offer by her, which could only be accepted by plaintiff notifying her that all of the desired leases had been obtained and were satisfactory to him, must be rejected. Nowhere does the agreement mention the necessity of any such notice. Nor does the provision making the agreement “subject to” plaintiff’s securing “satisfactory” leases necessarily constitute a condition to the existence of a contract. Rather, the whole purchase receipt and this particular clause must be read as merely making plaintiff’s performance dependent on the obtaining of “satisfactory” leases. Thus a contract arose, and plaintiff was given the power and privilege to terminate it in the event he did not obtain such leases. (See 3 Corbin, Contracts (1951), § 647, pp. 581-585.) This accords with the general view that deposit receipts are binding and enforceable contracts. (Cal. Practice Hand Book, Legal Aspects of Real Estate Transactions (1956), p. 63.)

However, the inclusion of this clause, specifying that leases “satisfactory” to plaintiff must be secured before he would be bound to perform, raises the basic question whether the consideration supporting the contract was thereby vitiated. When the parties attempt, as here, to make a contract where promises are exchanged as the consideration, the promises must be mutual in obligation. In other words, for the contract to bind either party, both must have assumed some legal obligations. Without this mutuality of obligation, the agreement lacks consideration and no enforceable contract has been created. (Shortell v. Evans-Ferguson Corp., 98 Cal.App. 650, 660-662 [277 P. 519]; 1 Corbin, Contracts (1950), § 152, pp. 496-502.) Or, if one of the promises leaves a party free to perform or to withdraw from the agreement at his own unrestricted pleasure, the promise is deemed illusory and it provides no consideration. (See J. C. Millett Co. v. Park & Tilford Distillers Corp. [N.D. Cal.], 123 F.Supp. 484, 493.) Whether these problems are couched in terms of mutuality of obligation or the illusory hature of a promise, the underlying issue is the same—consideration. (Ibid.)

While contracts making the duty of performance of one of the parties conditional upon his satisfaction would seem *123 to give him wide latitude in avoiding any obligation and thus present serious consideration problems, such “satisfaction” clauses have been given effect. They have been divided into two primary categories and have been accorded different treatment on that basis. First, in those contracts where the condition calls for satisfaction as to commercial value or quality, operative fitness, or mechanical utility, dissatisfaction cannot be claimed arbitrarily, unreasonably, or capriciously (Collins v. Tickler Manor, Inc., 47 Cal.2d 875, 882-883 [306 P.2d 783]), and the standard of a reasonable person is used in determining whether satisfaction has been received. (Thomas Haverty Co. v. Jones, 185 Cal. 285, 296 [197 P. 105]; Fielding & Shepley, Inc. v. Dow, 72 Cal.App.2d 18, 21 [163 P.2d 908] ; Fruit Growers Supply Co. v. Goss, 4 Cal.App. 2d 651, 654 [41 P.2d 357]; Scott Co., Inc. v. Rolkin, 133 Cal. App. 209, 212 [23 P.2d 1065] ; Melton v. Story, 113 Cal.App. 609, 612-614 [298 P. 1032]; Jones-McLaughlin, Inc. v. Kelly, 100 Cal.App. 315, 321-325 [279 P. 1076] ; Bruner v. Hegyi, 42 Cal.App. 97, 99 [183 P. 369].) Of the cited eases, two have expressly rejected the arguments that such clauses either rendered the contracts illusory (Collins v. Vickter Manor, Inc., supra) or deprived the promises of their mutuality of obligation. (Melton v. Story, supra.) The remaining cases tacitly assumed the creation of a valid contract. However, it would seem that the factors involved in determining whether a lease is satisfactory to the lessor are too numerous and varied to permit the application of a reasonable man standard as envisioned by this line of eases. Illustrative of some of the factors which would have to be considered in this case are the duration of the leases, their provisions for renewal options, if any, their covenants and restrictions, the amounts of the rentals, the financial responsibility of the lessees, and the character of the lessees’ businesses.

This multiplicity of factors which must be considered in evaluating a lease shows that this case more appropriately falls within the second line of authorities dealing with 11 satisfaction” clauses, being those involving fancy, taste, or judgment. Where the question is one of judgment, the promisor’s determination that he is not satisfied, when made in good faith, has been held to be a defense to an action on the contract. (Tiffany v. Pacific Sewer Pipe Co., 180 Cal. 700, 702-705 [182 P. 428, 6 A.L.R. 1493] ; Brenner v. Redlick Furniture Co., 113 Cal.App. 343, 346-347 [298 P. 62] ; Kendis v. Cohn, 90 Cal.App. 41, 66-68 [265 P. 844]; Schuyler v. *124 Pantages, 54 Cal.App. 83, 85-87 [201 P. 137]; see also Van Demark v. California H. E. Assn., 43 Cal.App. 685, 687-689 [185 P. 866].) Although these decisions do not expressly discuss the issues of mutuality of obligation or illusory promises, they necessarily imply that the promisor’s duty to exercise his judgment in good faith is an adequate consideration to support the contract. None of these cases voided the contracts on the ground that they were illusory or lacking in mutuality of obligation. Defendant’s attempts to distinguish these eases are unavailing, since they are predicated upon the assumption that the deposit receipt was not a contract making plaintiff’s performance conditional on his satisfaction. As seen above, this was the precise nature of the agreement. Even though the “satisfaction” clauses discussed in the above-cited cases dealt with performances to be received as parts of the agreed exchanges, the fact that the leases here which determined plaintiff’s satisfaction were not part of the performance to be rendered is not material. The standard of evaluating plaintiff’s satisfaction—good faith—applies with equal vigor to this type of condition and prevents it from nullifying the consideration otherwise present in the promises exchanged.

Moreover, the secondary authorities are in accord with the California cases on the general principles governing “satisfaction” contracts. “It has been questioned whether an agreement in which the promise of one party is conditioned on his own or the other party’s satisfaction contains the elements of a contract—whether the agreement is not illusory in character because conditioned upon the whim or caprice of the party to be satisfied. Since, however, such a promise is generally considered as requiring a performance which shall be satisfactory to him in the exercise of an honest judgment, such contracts have been almost universally upheld.” (3 Williston, Contracts (rev. ed. 1936), § 675a, p. 1943; see also 3 Corbin, Contracts (1951), §§ 644, 645, pp. 560-572.) “A promise conditional upon the promisor’s satisfaction is not illusory since it means more than that validity of the performance is to depend on the arbitrary choice of the promisor. His expression of dissatisfaction is not conclusive. That may show only that he has become dissatisfied with the contract; he must be dissatisfied with the performance, as a performance of the contract, and his dissatisfaction must be genuine.” (Rest., Contracts (1932), § 265, comment a.)

If the foregoing cases and other authorities were the *125 only ones relevant, there would he little doubt that the deposit receipt here should not be deemed illusory or lacking in mutuality of obligation because it contained the “satisfaction” clause. However, language in two recent cases led the trial court to the contrary conclusion. The first ease, Lawrence Block Co. v. Palston, 123 Cal.App.2d 300 [266 P.2d 856], stated that the following two conditions placed in an offer to buy an apartment building would have made the resulting contract illusory “O.P.A. Rent statements to be approved by Buyer” and “Subject to buyer’s inspection and approval of all apartments.” These provisions were said to give the purchaser “unrestricted discretion” in deciding whether he would be bound to the contract and to provide no “standard” which could be used in compelling him to perform. (123 Cal. App.2d at pp. 308-309.) However, this language was not necessary to the decision. The plaintiff in Lawrence Block Company was a real estate broker seeking a commission, his right to which depended upon the existence of a binding agreement between the buyer and seller. The seller had not accepted the buyer’s offer as originally written, but had added other conditions. This change constituted a counter-offer. Since the latter was not accepted by the buyer, no binding contract was created and the broker was not entitled to his commission.

The other case, Pruitt v. Fontana, 143 Cal.App.2d 675 [300 P.2d 371], presented a similar situation. The court concluded that the written instrument with a provision making the sale of land subject to the covenants and easements being “approved by the buyers” was illusory. It employed both the reasoning and language of Lawrence Block Co. in deciding that this clause provided no “objective criterion” preventing the buyers from exercising an “unrestricted subjective discretion” in deciding whether they would be bound. (143 Cal.App.2d at pp. 684-685.) But again, this language was not necessary to the result reached. The buyers in Pruitt refused to approve all of the easements of record, and the parties entered into a new and different oral agreement. The defendant seller was held to be estopped to assert the statute of frauds against this subsequent contract, and the judgment of dismissal entered after the sustaining of demurrers was reversed.

While the language in these two cases might be dismissed as mere dicta, the fact that the trial court relied thereon re *126 quires us to examine the reasoning employed. Both courts were concerned with finding an objective standard by which they could compel performance. This view apparently stems from the statement in Lawrence Bloch Company that “The standard ‘as to the satisfaction of a reasonable person’ does not apply where the performance involves a matter dependent on judgment.’’ (123 Cal.App.2d at p. 309.) By making this assertion without any qualification, the court necessarily implied that there is no other standard available. Of course, this entirely disregards those cases which have upheld “satisfaction’’ clauses dependent on the exercise of judgment. In such eases, the criterion becomes one of good faith. Insofar as the language in Lawrence Bloch Company and Pruitt represented a departure from the established rules governing “satisfaction’’ clauses, they are hereby disapproved.

We conclude that the contract here was neither illusory nor lacking in mutuality of obligation because the parties inserted a provision in their contract making plaintiff’s performance dependent on his satisfaction with the leases to be obtained by him.

The judgment is reversed.

Gibson, C. J., Shenk, J., Carter, J., Traynor, J., and Schauer, J., concurred.

McComb, J., dissented.

Parker C. J.

General rules of law established for tho protection and security of honest and fair-minded men, who may inconsiderately make promises without any equivalent, will sometimes screen men of a different character from engagements which they are bound in foro consciehtice to perform. This is a defect inherent in all human systems of legislation. The rule that a mere verbal promise, without any consideration, cannot be enforced by action, is universal in its application, and cannot be departed from to suit particular cases m which a refusal to perform such a promise may be disgraceful.

The promise declared on in this case appears to have been made without any legal consideration. The kindness and set-vices towards the sick son of the defendant were not bestowed *209at his request. The son was in no respect under the care of the defendant. He was twenty-five years old, and had long left his father’s family. On his return from a foreign country, he fell sick among strangers, and the plaintiff acted the part oi the good Samaritan, giving him shelter and comfort until he died. The defendant, his father, on being informed of this event, influenced by a transient feeling of gratitude, promises in writing to pay the plaintiff for the expenses he had incurred. But he has determined to break this promise, and is willing to have his case appear on record as a strong example of particular injustice sometimes necessarily resulting from the operation of general rules.

It is said a moral obligation is a sufficient consideration to support an express promise ; and some authorities lay down the rule thus broadly ; but upon examination of the cases we are satisfied that the universality of the rule cannot be supported, and that there must have been some preexisting obligation, which has become inoperative by positive law, to form a basis for an effective promise. The cases of debts barred by the statute of limitations, of debts incurred by infants, of debts of bankrupts, are generally put for illustration of the rule. Ex press promises founded on such preexisting equitable obligations may be enforced ; there is a good consideration for them ; they merely remove an impediment created by law to the recovery of debts honestly due, but which public policy protects the debtors from being compelled to pay. In all these cases there was originally a quid pro quo ; and according to the principles of natural justice the party receiving ought to pay ; but the legislature has said he shall not be coerced ; then comes the promise to pay the debt that is barred, the promise of the man to pay the debt of the infant, of the discharged bankrupt to restore to his creditor what by the law he had lost. In all these cases there is a moral obligation founded upon an antecedent valuable consideration. These promises therefore have a sound legal basis. They are not promises to pay someth. ng for nothing; not naked pacts ; but the voluntary revival or creation of obligation which before existed in natural law, but which had been dispensed with, not for the benefit of the party obliged solely, but principally for the public convenience *210If moral obligation, in its fullest sense, is a good substratum f°r an express pi ~>mise, it is not easy to perceive why it is not equally good to support an implied promise. What a man ought to do, generally he ought to be made to do, whether he promise or refuse. But the law of society has left most of such obligations to the interior forum, as the tribunal of conscience has been aptly called. Is there not a moral obligation upon every son who has become affluent by means of the education and advantages bestowed upon him by his father, to relieve that father from pecuniary embarrassment, to promote his comfort and happiness, and even to share with him his riches, if thereby he will be made happy ? And yet such a son may, with impunity, leave such a father in any degree of penury above that which will expose the community in which ho dwells, to the danger of being obliged to preserve him from absolute want. Is not a wealthy father under strong moral obligation to advance the" interest of an obedient, well disposed son, to furnish him with the means of acquiring and maintaining a becoming rank in life, to rescue him from the horrors of debt incurred by misfortune ? Yet the law will uphold him in any degree of parsimony, short of that which would reduce his son to the necessity of seeking public charity.

Without doubt there are great interests of society which justify withholding the coercive arm of the law from these duties of imperfect obligation, as they are called; imperfect, not uecause they are less binding upon the conscience than those which are called perfect, but because the wisdom of the social law does not impose sanctions upon them.

A deliberate promise, in writing, made freely and without any mistake, one which may lead the party to whom it is made into contracts and expenses, cannot be broken without a violation of moral duty. But if there was nothing paid or promised for it, the law, perhaps wisely, leaves the execution of it to the conscience of him who makes it. It is only when the party making the promise gains something, or he to whom it is made loses something, that the law gives the promise validity. And in the case of the promise of the adult to pay the debt of the infant, of the debtor discharged by the statute of hm *211rations or bankruptcy, the principle is preserved by looking back to the origin of the transaction, where an equivalent is to be founn An exact equivalent is not required by the law ; for there oeing a consideration, the parties are left to estimate its value : though here the courts of equity will step in to relieve from gross inadequacy between the consideration and the promise.

These principles are deduced from the general current of decided cases upon the subject, as well as from the known maxims of the common law. The general position, that moral obligation is a sufficient consideration for an express promise, is to be limited in its application, to cases where at some time or other a good or valuable consideration has. existed.1

A legal obligation is always a sufficient consideration to support either an express or an implied promise ; such as an infant’s debt for necessaries, or a father’s promise to pay for the support and education of his minor children. But when the child shall have attained to manhood, and shall have become his own agent in the world’s business, the debts he in curs, whatever may be their nature, create no obligation upon the father ; and it seems to follow, that his promise founded upon such a debt has no legally binding force.

The cases of instruments under seal and certain mercantile contracts, in which considerations need not be proved, do not contradict the principles above suggested. The first import a consideration in themselves, and the second belong to a branch of the mercantile law, which has found it necessary to disregard the point of consideration in respect to instruments *212negotiable in their nature and essential to the interests of com merce.

Instead of citing a multiplicity of cases to support the positions I have .aben, I will only refer to a very able review of all the cases in' the note in 3 Bos. & Pul. 249. The opinions of the judges had been variant for a long course of years upon this subject, but there seems to be no case in which it was nakedly decided, that a promise to pay the debt of a son of full age, not living with his father, though the debt were incurred by sickness which ended in the death of the son, without a previous request by the father proved or presumed, could be enforced by action. e

It has been attempted to show a legal obligation on the part of the defendant by virtue of our statute, which compels lineal kindred in the ascending or descending line to support such of their poor relations as are likely to become chargeable to the town where they have their settlement. But it is a sufficient answer to this position, that such legal obligation does not exist except in the very cases provided for in the statute, and never until the party charged has been adjudged to be of sufficient ability thereto. We do not know from the report any of the facts which are necessary to create such an obligation. Whether the deceased had a legal settlement in this commonwealth at the time of his death, whether he was likely to become chargeable had he lived, whether the defendant was of sufficient ability, are essential facts to be adjudicated by the court to which is given jurisdiction on this subject. The legal liability does not arise until these facts have all been ascertained by judgment, after hearing the party intended to be charged.1

For the foregoing reasons we are all of opinion that the non-suit directed by the Court of Common Pleas was right, and that judgment be entered thereon for costs for the defend ■ ant,

*84 BRICKEN, Presiding Judge.

This action is in assumpsit. The complaint as originally filed was amended. The demurrers to the complaint as amended were sustained,, and because of this adverse ruling by the court the plaintiff took a non-suit, and the assignment of errors on this appeal are predicated upon said action or ruling of the court.

A fair statement of the case presenting the questions for decision is set out in appellant’s brief, which we adopt.

“On the 3d day of August, 1925, appellant while in the employ of the W. T. Smith Lumber Company, a corporation, and. acting within the scope of his employment, was engaged in clearing the upper floor of mill No. 2 of the company. While so engaged he was in the act of dropping a pine block from the upper floor of the mill to the ground below; this being the usual and ordinary way of clearing the floor, and it be-: ing the duty of the plaintiff in the course of his employment to so drop it. The block weighed about 75 pounds.

“As appellant was in the act of dropping the block to the ground below, he was on the edge of the upper floor of the mill. As he started to turn the block loose so that it would drop to the ground, he saw J. Greeley McGowin, testator of the defendants, on the ground below and directly under where the block would have fallen had appellant turned it loose. Had he turned it loose it would have struck McGowin with such force as to have caused him serious bodily harm or death. Appellant could have remained safely on the upper floor of the mill by turning the block loose and allowing it to drop, but had he done this the block would have fallen on McGowin and caused him serious injuries or death. The only Safe and reasonable way to prevent this was for appellant to hold to the block and divert its direction in falling from the place where McGowin was standing and the only safe way to divert it so as to prevent its coming into contact with McGowin was for appellant to fall with it to the ground below. Appellant did this, and by holding to the block and falling with it to the ground below, he diverted the course of its fall in such way that McGowin was not injured. In thus preventing the injuries to McGowin appellant himself received serious bodily injuries, resulting, in his right leg being broken, the heel of his right foot torn off and his right arm broken. He was badly crippled for life and rendered unable to do physical or mental labor.

“On September 1, 1925, in consideration of appellant having prevented him from sustaining death or serious bodily harm and in consideration of the injuries appellant had received, McGowin agreed with him to care for and maintain him for the remainder of appellant’s life at the rate of $15 every two weeks from the time he sustained his injuries to and during the remainder of appellant’s life; it being agreed that Mc-Gowin would pay this sum to appellant for his maintenance. Under the agreement Mc-Gowin paid or caused to be paid to appellant the sum so agreed on up until McGowin’s death on January 1, 1934. After his death the payments were continued to and including January 27, 1934, at which time they were discontinued. Thereupon plaintiff brought suit to recover the unpaid installments accruing up to the time of the bringing of the suit.

“The material averments of the different counts of the original complaint and the amended complaint are predicated upon the foregoing statement of facts.”

In other words, the complaint as amended averred in substance: (1) That on August 3, 1925, appellant saved J. Greeley McGowin, appellee’s testator, from death or grievous bodily harm; (2) that in doing so appellant sustained bodily injury crippling him for life; (3) that in consideration of the services rendered and the injuries received by appellant, McGowin agreed to care for him the remainder of appellant’s life, the amount to be paid being $15 every two weeks; (4) that McGowin complied with this agreement until he died on January 1, 1934, and the payments were kept up to January 27, 1934, after which they were discontinued.

' The action was for the unpaid install-, ments accruing after January 27, 1934, to the time of the suit.

*85 The principal grounds of demurrer to the original and amended complaint are: (1) It states no cause of action; (2) its averments show, the contract was without consideration; (3) it fails to allege that McGowin had, at or before the services were rendered, agreed to pay appellant for them; (4) the contract declared on is void under the statute of frauds.

1. The averments of the complaint show that appellant saved McGowin from death or grievous bodily harm. This was a material benefit to him of infinitely more value than any financial aid he could have received. Receiving this benefit, McGowin became morally bound to compensate appellant for the services rendered. Recognizing his moral obligation, he expressly agreed to pay appellant as alleged in the complaint and complied with this agreement up to the time of his death; a period of more than 8 years.

Had McGowin been accidentally poisoned and a physician, without his knowledge or request, had administered an antidote, thus saving his ife, a subsequent promise by McGowin to pay the physician would 'have been valid. Likewise, Mc-Gowin’s agreement as disclosed by the complaint to compensate appellant for saving him from death or grievous bodily injury is valid and enforceable.

Where the promisee cares for, improves, and preserves the property of the promisor, though done without his request, it is sufficient consideration for the promisor’s subsequent agreement to pay for the service, because of the material benefit received. Pittsburg Vitrified Paving & Building Brick Co. v. Cerebus Oil Co., 79 Kan. 603, 100 P. 631; Edson v. Poppe, 24 S.D. 466, 124 N.W. 441, 26 L.R.A.(N.S.) 534; Drake v. Bell, 26 Misc. 237, 55 N.Y.S. 945.

In Boothe v. Fitzpatrick, 36 Vt. 681, the court held that a promise by defendant to pay for the past keeping of a bull which had escaped from defendant’s premises and been cared for by plaintiff-was valid, although there was no previous request, because the subsequent promise obviated that objection; it being equivalent to a previous request. On the same principle, had the promisee saved the promisor’s life or his body from grievous harm, his subsequent promise to pay for the services rendered would have been valid. Such service would have been far more material than caring for his bull. Any holding that saving a man from death or grievous bodily harm is not a material benefit sufficient to uphold a subsequent promise to pay for the service, necessarily rests on the assumption that saving life and preservation of the body from harm have only a sentimental value. The converse of this is true. Life and preservation 'of the body have material, pecuniary values, measurable in dollars and cents. Because of this, physicians practice their profession charging for services rendered in saving life and curing the body of its ills, and surgeons perform operations. The same is true as to the law of negligence, authorizing the assessment of damages in personal injury cases based upon the extent of the injuries, earnings,' and life expectancies of those injured.

In the business of life insurance, the value of a man’s life is measured in dollars and cents according to his expectancy, the soundness of his body, and his ability to pay premiums. The same is true as to health and accident insurance.

It follows that if, as alleged in the complaint, appellant saved J. Greeley Mc-Gowin from death or grievous bodily harm, and McGowin subsequently agreed to pay him for the service rendered, it became a valid and enforceable contract. .

2. It is well settled that a moral obligation is a sufficient consideration to support a subsequent promise to pay where the promisor has received a material benefit, although there was no original duty or liability resting on the promisor. Lycoming County v. Union County, 15 Pa. 166, 53 Am.Dec. 575, 579, 580; Ferguson v. Harris, 39 S.C. 323, 17 S.E. 782, 39 Am.St.Rep. 731, 734; Muir v. Kane, 55 Wash. 131, 104 P. 153, 26 L.R.A.(N.S.) 519, 19 Ann.Cas. 1180; State ex rel. Bayer v. Funk, 105 Or. 134, 199 P. 592, 209 P. 113, 25 A.L.R. 625, 634; Hawkes v. Saunders, 1 Cowp. 290; In re Sutch’s Estate, 201 Pa. 305, 50 A. 943; Edson v. Poppe, 24 S.D. 466, 124 N.W. 441, 25 L.R.A.(N. S.) 534; Park Falls State Bank v. Fordyce, 206 Wis. 628, 238 N.W. 516, 79 A.L. R. 1339;. Baker v. Gregory, 28 Ala. 544, 65 Am.Dec. 366. In the case of State ex rel. Bayer v. Funk, supra, the court held that a moral obligation is a sufficient consideration to support an executory promise where the promisor has received an actual pecuniary or material benefit for *86 which he subsequently expressly promised to pay.

The case at bar is clearly distinguishable from that class of cases where the consideration is a mere moral obligation or conscientious duty unconnected with receipt by promisor of benefits of a material or pecuniary nature. Park Falls State Bank v. Fordyce, supra. Here the promisor received a material benefit constituting a valid consideration for his promise.

3. Some authorities hold that, for a moral obligation to support a subsequent promise to pay, there must have existed a prior legal or equitable obligation, which for some reason had become unenforceable, but for which the promisor was still morally bound. This rule, however, is subject to qualification" in those cases where the promisor, having received a material benefit from the promisee, is morally bound to compensate him for the services rendered and in consideration of this obligation promises to pay. In such cases the subsequent promise to pay is an affirmance or ratification of the services rendered carrying with it the presumption that a previous request for the service was made. McMorris v. Herndon, 2 Bailey (S.C.) 56, 21 Am.Dec. 515; Chadwick v. Knox, 31 N.H. 226, 64 Am.Dec. 329; Kenan v. Holloway, 16 Ala. 53, 50 Am.Dec. 162; Ross v. Pearson, 21 Ala. 473.

Under the decisions above cited, Mc-Gowin’s' express promise to pay appellant for the services rendered was an affirmance or ratification of what appellant had done raising the presumption that the services had been rendered at Mc-Gowin’s request.

4. The averments of the complaint show that in saving McGowin from death or grievous bodily harm, appellant was crippled for life. This was part of the consideration of the contract declared on. McGowin was benefited. Appellant was injured. Benefit to the promisor or injury to the promisee is a sufficient legal consideration for the' promisor’s agreement to pay. Fisher v. Bartlett, 8 Greenl. (Me.) 122, 22 Am.Dec. 225; State ex rel. Bayer v. Funk, supra.

5. Under the averments of the complaint the services rendered by appellant were not gratuitous. The agreement of Mc-Gowin to pay and the acceptance of payment by appellant conclusively shows the contrary. . •

6. The contract declared on was not void under the statute of frauds (Code 1923, § 8034). The demurrer on this ground was not well taken. 25 R.C.L. 456, 457 and 470, § 49.

The cases of Shaw v. Boyd, 1 Stew. & P. '83, and Duncan v. Hall, 9 Ala. 128, are not in conflict with the principles here announced. In those cases the lands were owned by the United States at the time the alleged improvements were made, for which subsequent purchasers ' from the government agreed to pay. These subsequent purchasers were not the owners of the lands at the time the improvements were made. Consequently, they could not have been made for their benefit.

From what has been said, we are of the opinion that the court below erred in the ruling complained of; that is to say, in sustaining the demurrer, and for this error the case is reversed and remanded.

Reversed and remanded.

SAMFORD, Judge

(concurring).

The questions involved in this case are not free from doubt, and perhaps the strict letter of the rule, as stated by judges, though hot always in accord, would bar a recovery by plaintiff, but following the principle announced by Chief Justice Marshall in Hoffman v. Porter, Fed. Cas. No. 6,577, 2 Brock. 156, 159, where he says, “I do not think that law ought to be separated from justice, where it is at most doubtful,” I concur in the conclusions reached by the court.

Per Curiam.

Tbe plaintiff in this case sought to recover of tbe defendant upon a promise made by him under tbe following peculiar circumstances :

Tbe defendant bad assaulted bis wife, who took refuge in plaintiff’s bouse. Tbe next day tbe defendant gained access to tbe bouse and began *691 another assault upon bis wife. The defendant’s wife knocked him down with an axe, and was on the point of cutting bis bead open or decapitating him while be was laying on the floor, and the plaintiff intervened, caught the axe as it was descending, and the blow intended for defendant fell upon her band, mutilating it badly, but saving defendant’s life.

Subsequently, defendant orally promised to pay the plaintiff her damages; but, after paying a small sum, failed to pay anything more. So, substantially, states the complaint.

The defendant demurred to the complaint as not stating a cause of action, and the demurrer was sustained. Plaintiff appealed.

The question presented is whether there was a consideration recognized by our law as sufficient to support the promise. The Court is of the opinion that however much the defendant should be impelled by common gratitude to alleviate the plaintiff’s misfortune, a humanitarian act of this kind, voluntarily performed, is not such consideration as would entitle her to recover at law.

The judgment sustaining the demurrer is

Affirmed.

DOERNER, Commissioner.

This is a suit brought in the Circuit Court of the City of St. Louis by plaintiff, a former employee of the defendant corporation, on an alleged contract whereby defendant agreed to pay plaintiff the sum of $200 per month for life upon her retirement. A jury being waived, the case was tried by the court alone. Judgment below was for plaintiff for $5,100, the amount of the pension claimed to be due as of the date of the trial, together with interest thereon, and defendant duly appealed.

The parties are in substantial agreement on the essential facts. Plaintiff began working for the defendant, a manufacturer of pharmaceuticals, in 1910, when she was but 17 years of age. By 1947 she had attained the position of bookkeeper, office manager, and assistant treasurer of the defendant, and owned 70 shares of its stock out of a total of 6,503 shares issued and outstanding. Twenty shares had been given to her by the defendant or its then president, she had purchased 20, and the remaining 30 she had acquired by a stock split or stock dividend. Over the years she received substantial dividends on the stock she owned, as did all of the other stockholders. Also, in addition to her salary, plaintiff from 1937 to 1949, inclusive, received each year a bonus vai'ying in amount from $300 in the beginning to $2,000 in the later years.

On December 27, 1947, the annual meeting of the defendant’s Board of Directors was held at the Company’s offices in St. Louis, presided over by Max Lippman, its then president and largest individual stockholder. The other directors present were George L. Marcus, Sidney Harris, Sol Flammer, and Walter Weinstock, who, with Max Lippman, owned 5,007 of the 6,503 shares then issued and outstanding. At that meeting the Board of Directors adopted the following resolution, which, because it is the crux of the case, we quote in full :

“The Chairman thereupon pointed out that the Assistant Treasurer, Mrs. Anna Sacks Feinberg, has given the corporation many years of long and faithful service. Not only has she served the corporation devotedly, but with exceptional ability and skill. The President pointed out that although all of the officers and directors sincerely hoped and desired that Mrs. Fein-berg would continue in her present position for as long as she felt able, nevertheless, in view of the length of service which she has contributed provision should be made to afford her retirement privileges and benefits which should become a firm obligation of the corporation to be available to her whenever she should see fit to retire from active duty, however many years in the future such retirement may become effective. It was, accordingly, *165 proposed that Mrs. Feinberg’s salary which is presently $350.00 per month, be increased to $400.00 per month, and that Mrs. Feinberg would be given the privilege of retiring from active duty at any time she may elect to see fit so to do upon a retirement pay of $200.00 per month for life, with the distinct understanding that the retirement plan is merely being adopted at the present time in order to afford Mrs. Feinberg security for the future and in the hope that her active services will continue with the corporation for many years to come. After due discussion and consideration, and upon motion duly made and seconded, it was—

“Resolved, that the salary of Anna Sacks Feinberg be increased from $350.00 to $400.00 per month and that she be afforded the privilege of retiring from active duty in the corporation at any time she may elect to see fit so to do upon retirement pay of $200.00 per month, for the remainder of her life.”

At the request of Mr. Lippman his sons-in-law, Messrs. Harris and Flammer, called upon the plaintiff at her apartment on the same day to advise her of the passage of the resolution. Plaintiff testified on cross-examination that she had no prior information that such a pension plan was contemplated, that it came as a surprise to her, and that she would have continued in her employment whether or not such a resolution had been adopted. It is clear from the evidence that there was no contract, oral or written, as to plaintiff’s length of employment, and that she was free to quit, and the defendant to discharge her, at any time.

Plaintiff did continue to work for the defendant through June 30, 1949, on which date she retired. In accordance with the foregoing resolution, the defendant began paying her the sum of $200 on the first of each month. Mr. Lippman died on November 18, 1949, and was succeeded as president of the company by his widow. Because of an illness, she retired from that office and was succeeded in October, 1953, by her son-in-law, Sidney M. Harris. Mr. Harris testified that while Mrs. Lippman had been president she signed the monthly pension check paid plaintiff, but fussed about doing so, and considered the payments as gifts. After his election, he stated, a new accounting firm employed by the defendant questioned the validity of the payments to plaintiff on several occasions, and in the Spring of 1956, upon its recommendation, he consulted the Company’s then attorney, Mr. Ralph ICalish. Harris testified that both Ernst and Ernst, the accounting firm, and Kalish told him there was no need of giving plaintiff the money. He also stated that he had concurred in the view that the payments to plaintiff were mere gratuities rather than amounts due under a contractual obligation, and that following his discussion with the Company’s attorney plaintiff was sent a check for $100 on April 1, 1956. Plaintiff declined to accept the reduced amount, and this action followed. Additional facts will be referred to later in this opinion.

Appellant’s first assignment of error relates to the admission in evidence of plaintiff’s testimony over its objection, that at the time of trial she was sixty-five and a half years old,- and that she was no longer able to engage in gainful employment because of the removal of a cancer and the performance of a colocholecysto-stomy operation on November 25, 1957. Its complaint is not so much that such evidence was irrelevant and immaterial, as it is that the trial court erroneously made it one basis for its decision in favor of plaintiff. As defendant concedes, the error (if it was error) in the admission of such evidence would not be a ground for reversal, since, this being a jury-waived case, we are constrained by the statutes to review it upon both the law and the evidence, Sec. 510.310 RSMo 1949, V.A.M.S., and to render such judgment as the court below ought *166 to have given. Section 512.160, Minor v. Lillard, Mo., 289 S.W.2d 1; Thumm v. Lohr, Mo.App., 306 S.W.2d 604. We consider only such evidence as is admissible, and need not pass upon questions of error in the admission and exclusion of evidence. Hussey v. Robison, Mo., 285 S.W.2d 603. However, in fairness to the trial court it should be stated that while he briefly referred to the state of plaintiff’s health as of the time of the trial in his amended findings of fact, it is obvious from his amended grounds for decision and judgment that it was not, as will be seen, the basis for his decision.

.Appellant’s next complaint is that there was insufficient evidence to support the court’s findings that plaintiff would not have quit defendant’s employ had she not known and relied upon the promise of defendant to pay her $200 a month for life, and the finding that, from her voluntary retirement until April 1, 1956, plaintiff relied upon the continued receipt of the pension installments. The trial court so found, and, in our opinion, justifiably so. Plaintiff testified, and was corroborated by Harris, defendant’s witness, that knowledge of the passage of the resolution was communicated to her on December 27, 1947, the very day it was adopted. She was told at that time by Harris' and Flammer, she stated, that she could take the pension as of that day, if she wished. She testified further that she continued to work for another year and a'half, through June 30, 1949; that at that time her health was good and she could have continued to work, but that after working for almost forty years she thought she would take a rest. Her testimony continued :

“Q. Now, what was the reason— I’m sorry. Did you then quit the employment of the company after you— after this year and a half ? A. Yes.

“Q. What was the reason that you left? A. Well, I thought almost forty years, it was a long time and I thought I would take a little rest.

“Q. Yes. A. And with the pension and what earnings my husband had, we figured we could get along.

“Q. Did you rely upon this pension? A. We certainly did.

“Q. Being paid? A. Very much so. We relied upon it because I was positive that I was going to get it as long as I lived.

“Q. Would you have left the employment of the company at that time had it not been for this pension? A. No.

“Mr. Allen: Just a minute, I object to that as calling for a conclusion and conjecture on the part of this witness.

“The Court: It will be overruled.

“Q. (Mr. Agatstein continuing) : Go ahead, now. The question is whether you would have quit the employment of the company at that time had you not relied upon this pension plan? A. No, I wouldn’t.

“Q. You would not have. Did you ever seek employment while this pension was being paid to you — A. (interrupting) : No.

“Q. Wait a minute, at any time pri- or- — at any other place? A. No, sir.

“Q. Were you able to hold any other employment during that time? A. Yes, I think so.

“Q. Was your health good? A. My health was good.”

It is obvious from the foregoing that there was ample evidence to support the findings of fact made by the court below.

We come, then, to the basic issue in the case. While otherwise defined in defendant’s third and fourth assignments of error, it is thus succinctly stated in the argument in its brief: “ * * * whether plaintiff has proved that she has a right to recover from defendant based upon a legally bind *167 ing contractual obligation to pay her $200 per month for life.”

It is defendant’s contention, in essence, that the resolution adopted by its Board of Directors was a mere promise to make a gift, and that no contract resulted either thereby, or when plaintiff retired, because there was no consideration given or paid by the plaintiff. It urges that a promise to make a gift is not binding unless supported by a legal consideration; that the only apparent consideration for the adoption of the foregoing resolution was the “many years of long and faithful service” expressed therein; and that past services are not a valid consideration for a promise. Defendant argues further that there is nothing in the resolution which made its effectiveness conditional upon plaintiff’s continued employment, that she was not under contract to work for any length of time but was free to quit whenever she wished, and that she had no contractual right to her position and could have been discharged at any time.

Plaintiff concedes that a promise based upon past services would be without consideration, but contends that there were two other elements which supplied the required element: First, the continuation by plaintiff in the employ of the defendant for the period from December 27, 1947, the date when the resolution was adopted, until the date of her retirement on June 30, 1949. And, second, her change of position, i. e., her retirement, and the abandonment by her of her opportunity to continue in gainful employment, made in reliance on defendant’s promise to pay her $200 per month for life.

We must agree with the defendant that the evidence does not support the first of these contentions. There is no language in the resolution predicating plaintiff’s right to a pension upon her continued employment. She was not required to work for the defendant for any period of time as a condition to gaining such retirement benefits. She was told that she could quit the day upon which the resolution was adopted, as she herself testified, and it is clear from her own testimony that she made no promise or agreement to continue in the employ of the defendant in return for its promise to pay her a pension. Hence there was lacking that mutuality of obligation which is essential to the validity of a contract. Middleton v. Holecraft, Mo.App., 270 S.W.2d 90; Solace v. T. J. Moss Tie Co., Mo.App., 142 S.W.2d 1079; Aslin v. Stoddard County, 341 Mo. 138, 106 S.W.2d 472; Fuqua v. Lumbermen’s Supply Co., 229 Mo.App. 210, 76 S.W.2d 715; Hudson v. Browning, 264 Mo. 58, 174 S.W. 393; Campbell v. American Handle Co., 117 Mo.App. 19, 94 S.W. 815.

But as to the second of these contentions we must agree with plaintiff. By the terms of the resolution defendant promised to pay plaintiff the sum of $200 a month upon her retirement. Consideration for a promise has been defined in the Restatement of the Lav/ of Contracts, Section 75, as:

“(1) Consideration for a promise is

(a) an act other than a promise, or

(b) a forbearance, or

(c) the creation, modification or de: struction of a legal relation, or

(d) a return promise, bargained for and given in exchange for the promise.”

As the parties agree, the consideration sufficient to support a contract may be either a benefit to the promisor or a loss or detriment to the promisee. Industrial Bank & Trust Co. v. Hesselberg, Mo., 195 S.W.2d 470; State ex rel. Kansas City v. State Highway Commission, 349 Mo. 865, 163 S.W.2d 948; Duvall v. Duncan, 341 Mo. 1129, 111 S.W.2d 89; Thompson v. McCune, 333 Mo. 758, 63 S.W.2d 41.

Section 90 of the Restatement of the Law of Contracts states that: “A promise which the promisor should reasonably expect to induce action or forbearance of a *168 definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” This doctrine has been described as that of “promissory estoppel,” as distinguished from that of equitable estoppel or estoppel in pais, the reason for the differentiation being stated as follows:

“It is generally true that one who has led another to act in reasonable reliance on his representations of fact cannot afterwards in litigation between the two deny the truth of the representations, and some courts have sought to apply this principle to the formation of contracts, where, relying on a gratuitous promise, the prom-isee has suffered detriment. It is to be noticed, however, that such a case does not come within the ordinary definition of estoppel. If there is any representation of an existing fact, it is only that the promisor at the time of making the promise intends to fulfill it. As to such intention there is usually no misrepresentation and if there is, it is not that which has injured the promisee. In other words, he relies on a promise and not on a- misstatement of fact; and the term ‘promis-' sory’ estoppel or something equivalent should be used to make the distinction.” Williston on Contracts, Rev. Ed., Sec. 139, Vol. 1.

In speaking of this doctrine, Judge Learned Hand said in Porter v. Commissioner of Internal Revenue, 2 Cir., 60 F.2d 673, 675, that “* * * ‘promissory estoppel’ is now a recognized species of consideration.”

As pointed out by our Supreme Court in In re Jamison’s Estate, Mo., 202 S.W.2d 879, 887, it is stated in the Missouri Annotations to the Restatement under Section 90 that:

“ ‘There is a variance between the doctrine underlying this section and the theoretical justifications that have been advanced for the Missouri decisions.’ ”

That variance, as the authors of the Annotations point out, is that:

“This § 90, when applied with § 85, means that the promise described is a contract without any consideration. In Missouri the same practical result is reached without in theory abandoning the doctrine of consideration. In Missouri three theories have been advanced as ground for the decisions (1) Theory of act for promise. The induced ‘action or forbearance’ is the consideration for the promise. Underwood Typewriter Co. v. Century Realty Co. (1909) 220 Mo. 522, 119 S.W. 400, 25 L.R.A., N.S., 1173. See § 76. (2) Theory of promissory estoppel. The induced ‘action or forbearance’ works an estoppel against the promisor. (Citing School District of Kansas City v. Sheidley (1897) 138 Mo. 672, 40 S.W. 656 [37 L.R.A. 406]) * * * (3) Theory of bilateral contract. When the induced ‘action or forbearance’ is begun, a promise to complete is implied, and we have an enforceable bilateral contract, the implied promise to complete being the consideration for the original promise.” (Citing cases.)

Was there such an act on the part of plaintiff, in reliance upon the promise contained in the resolution, as will estop the defendant, and therefore create an enforceable contract under the doctrine of promissory estoppel? We think there was. One of the illustrations cited under Section 90 of the Restatement is: “2. A promises B to pay him an annuity during B’s life. B thereupon resigns a profitable employment, as A expected that he might. B receives the annuity for some years, in the meantime becoming disqualified from again obtaining good employment. A’s promise is binding.” This illustration is objected to by defendant as not being applicable to the case at hand. The reason advanced by it is *169 that'in the illustration B became “disqualified” from obtaining other employment before A discontinued the payments, whereas in this case the plaintiff did not discover that she had cancer and thereby became unemployable until after the defendant had discontinued the payments of $200 per month. We think the distinction is immaterial. The only reason for the reference in the illustration to the disqualification of A is in connection with that part of Section 90 regarding the prevention of injustice. The injustice would occur regardless of when the disability occurred. Would defendant contend that the contract would be enforceable if the plaintiff’s illness had been discovered on March 31, 1956, the day before it discontinued the payment of the $200 a month, but not if it occurred on April 2nd, the day after? Furthermore, there are more ways to become disqualified for work, or unemployable, than as the result of illness. At the time she retired plaintiff was 57 years of age. At the time the payments were discontinued she was over 63 years of age. It is a matter of common knowledge that it is virtually impossible for a woman of that age to find satisfactory employment, much less a position comparable to that which plaintiff enjoyed at the time of her retirement.

The fact of the matter is that plaintiff’s subsequent illness was not the “action or forbearance” which was induced by the promise contained in the resolution. As the trial court correctly decided, such action on plaintiff’s part was her retirement from a lucrative position in reliance upon defendant’s promise to pay her an annuity or pension. In a very similar case, Ricketts v. Scothorn, 57 Neb. 51, 77 N.W. 365, 367, 42 L.R.A. 794, the Supreme Court of Nebraska said:

“ * * * According to the undisputed proof, as shown by the record before us, the plaintiff was a working girl, holding a position in which she earned a salary of $10 per week. Her grandfather, desiring to put her in a position of independence, gave her the note accompanying it with the remark that his other grandchildren did not work, and that she would not be obliged to work any longer. In effect, he suggested that she might abandon her employment, and rely in the future upon the bounty which he promised. He doubtless desired that she should give up her occupation, but, whether he did or not, it is entirely certain that he contemplated such action on her part as a reasonable and probable consequence of his gift. Having intentionally influenced the plaintiff to alter her position for the worse on the faith of the note being paid when due, it would be grossly inequitable to permit the maker, or his executor, to resist payment on the ground that the promise was given without consideration.”

The Commissioner therefore recommends, for the reasons stated, that the judgment be affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. The judgment is, accordingly, affirmed.

CUDAHY, Circuit Judge.

D & G Stout, Inc., operating at all relevant times under the name General Liquors, Inc. (General), was distributing liquor in the turbulent Indiana liquor market in 1987. When two of its major suppliers jumped ship in early 1987, General faced a critical dilemma: sell out at the best possible price or continue operating on a smaller scale. It began negotiating with another Indiana distributor on the terms of a possible sale. Bacardi Imports, Inc. (Bacardi), was still one of General’s remaining major suppliers. Knowing that negotiations were ongoing for General’s sale, Bacardi promised that General would continue to act as Bacardi’s distributor for Northern Indiana. Based on this representation, General turned down the negotiated selling price it was offered. One week later, Bacardi withdrew its account. Realizing it could no longer continue to operate, General went back to the negotiating table, this time settling for an amount $550,000 below the first offer. The question is whether General can recover the price differential from Bacardi on a theory of promissory estoppel. The district court believed that as a matter of law it could not, and entered summary *567 judgment for defendant Bacardi. We'disagree, and so we remand for trial.

I.

General was (and D & G Stout, Inc., is) an Indiana corporation with its main place of business in South Bend. Bacardi is a corporation organized in New York and doing business primarily in Miami, Florida. General served at Bacardi’s will as its wholesale distributor in Northern Indiana for over 35 years. During the 1980s, liquor suppliers in Indiana undertook an extensive effort to consolidate their distribution, the effect of which was to reduce the number of distributors in the state from approximately twenty in 1980 to only two in 1990.

General weathered the storm until April 1987, when two of its major suppliers withdrew their lines, taking with them the basis of more than fifty percent of General’s gross sales. By June, General recognized that it must choose between selling out and scaling back operations in order to stay in business. Despite the recent setbacks, General calculated that remaining operational was possible as long as it held on to its continuing two major suppliers, Bacardi and Hiram Walker.

About this time (and probably in connection with the same forces concentrating distribution) Bacardi lost its distributor in Indianapolis and southern Indiana. Bacardi decided to convene a meeting on July 9, 1987, of applicants for the open distributorship. General’s president, David Stout, attended the meetings as an observer, with no designs on the new opening. Stout did intend to seek assurances from Bacardi about its commitment to General in Northern Indiana. While in Indianapolis,-Stout was approached by National Wine & Spirits Company (National), which expressed an interest in buying General. Stout agreed to begin negotiations the following weekend. Stout also received the assurances from Bacardi he sought: after listening to Stout’s concerns and hearing about his contemplated sale of General, Bacardi emphatically avowed that it had no intention of taking its line to another distributor in Northern Indiana. This promise was open-ended — no one discussed how long the continuing relationship might last.

During the ensuing two weeks, General carried on negotiations with National to reach a price for the purchase of General’s assets. Bacardi kept in close contact with General to find out whether it would indeed sell. The' negotiations yielded a final figure for Stout to consider. On July 22 and again on July 23 — with negotiations concluded and only the final decision remaining — Stout again sought assurances from Bacardi. The supplier unequivocally reconfirmed its commitment to stay with General, and Stout replied that, as a result, he was going to turn down National’s offer and would continue operating. Later on the 23rd, Stout rejected National’s offer. That same afternoon, Bacardi. decided to withdraw its line from General.

General learned of Bacardi’s decision on July 30. The news spread quickly through the industry, and by August 3, Hiram Walker had also pulled its line, expressing a belief that General could not continue without Bacardi on board. By this time, sales personnel were abandoning General for jobs with the two surviving distributors in Indiana (one of which was National). General quickly sought out National to sell its assets, but National’s offer was now substantially reduced. The ensuing agreement, executed on August 14 and closed on August 28, included a purchase price $550,-000 lower than the one National offered in mid-July. Stout’s successor company brought suit under the diversity jurisdiction against Bacardi, claiming that the supplier was liable by reason of promissory estoppel for this decline in the purchase price. Judge Miller entered summary judgment for Bacardi, holding that the promises plaintiff alleged were not the type upon which one may rely under Indiana law. Plaintiff appeals.

II.

We have generally stated General’s version of the facts, many of which are undisputed. On appeal, Bacardi does not argue the facts and is apparently willing to rest *568 on Judge Miller’s legal analysis. Both parties also agree with Judge Miller that Indiana law governs this case and we do not question this conclusion. Before us then is the legal question whether the plaintiff has alleged any injury which Indiana's law of promissory estoppel redresses.

Indiana has adopted the Restatement’s theory of promissory estoppel:

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee and a third person and which does induce such action or forbearance is binding if injustice can be avoided only by the enforcement of the promise. The remedy for breach may be limited as justice requires.

Restatement (Second) of Contracts § 90(1) (1981); Eby v. York-Division, Borg-Warner, 455 N.E.2d 623, 627 (Ind.App.1983); Pepsi-Cola General Bottlers, Inc. v. Woods, 440 N.E.2d 696, 698 (Ind.App.1982). The district judge dismissed the complaint on the ground that Bacardi’s alleged promise was not one on which it should reason-, ably have expected General to.rely.

The district court first noted that the relationship between General and Bacardi had always been terminable at will. Because Bacardi’s promises that it would continue to use General as its distributor contained no language indicating that they would be good for any specific period, 1 the court reasoned that the relationship remained terminable at will. It then concluded that the promise was not legally enforceable, and thus was not one on which General reasonably might rely. We agree with each of these conclusions but the last. Notwithstanding the continuation of an at-will relationship between Bacardi and General, the promises given between July 9 and July 23 were not without legal effect.

In Indiana, as in many states, an aspiring employee cannot sue for lost wages on an unfulfilled promise of at-will employment. Pepsi-Cola, 440 N.E.2d 696; accord Ewing v. Board of Trustees of Pulaski Memorial Hosp., 486 N.E.2d 1094, 1098 (Ind.App.1985) (employment contract for indefinite tenure is unenforceable for future employment). Because the employer could have terminated the employee without cause at any time after the employment began, the promise of a job brings no expectation of any determinable period of employment or corresponding amount of wages. The promise is therefore unenforceable under either a contract or a promissory estoppel theory in an action for lost wages. Nevertheless, lost wages are not the only source of damages flowing from a broken promise of employment, enforceable or not. Indiana courts acknowledge certain damages as recoverable when the employer breaks a promise of employment, even if the employment is to be terminable at will. For example, in Eby v. York-Division, Borg-Warner, 455 N.E.2d at 627, a plaintiff who gave up a job and moved from Indiana to Florida on a promise of employment sued for recovery of preparation and moving expenses incurred on the basis of the promise. The Indiana appellate court reversed the lower court’s summary judgment for the defendant employer, holding that the plaintiff employee had stated a cause of action for promissory estoppel. The court found that the defendant could have expected the plaintiff and his wife to move in reliance on the promise of employment and therefore might be liable for reneging. See also Pepsi-Cola, 440 N.E.2d 696; accord Lorson v. Falcon Coach, 214 Kan. 670, 522 P.2d 449 (1974).

Our review of Indiana law thus leaves us a simple if somewhat crude question: are the damages plaintiff seeks here more like lost future wages or like moving expenses? We can better answer the question if we determine why Indiana draws this distinction. Unlike lost wages, moving expenses represent out-of-pocket losses; they involve a loss of something already possessed. It would be plausible, although not very so *569 phisticated, to distinguish between the loss of something yet to be received and the loss of something already in hand. But this is not precisely where Indiana draws the distinction, nor where we would draw it if it were our choice to make. Eby itself involved not only moving expenses, but wages lost at plaintiffs old job during the few days plaintiff was preparing to move. 455 N.E.2d at 625. Those wages were not out-of-pocket losses: plaintiff had no more received those wages than he had received wages from his promised employment.

In fact, the line Indiana draws is between expectation damages and reliance damages. In future wages, the employee has only an expectation of income, the recovery of which promissory estoppel will not support in an at-will employment setting. In wages forgone in order to prepare to move, as in moving expenses themselves, the employee gave up a presently determinate sum for the purpose of relocating. Both moving expenses and forgone wages were the hopeful employee’s costs of positioning himself for his new job; moving expenses happen to be out-of-pocket losses, while forgone wages are opportunity costs. Both are reliance costs, not expectancy damages.

Thus, the question has become whether the loss incurred from the price drop was attributable to lost expectations of future profit or resulted from an opportunity forgone in reliance on the promise. At first blush, the injury might seem more like the loss of future wages. Bacardi was a major supplier whose business was extremely valuable to General. While the loss of this “asset” might cause a decline in General’s market value as measured by the loss of future income from the sale of Bacardi’s products, this loss is not actionable on a promissory estoppel theory. Those damages would presumably be measured by the present value of General’s anticipated profit from the sale of Bacardi’s products, and Indiana will not grant relief based on promissory estoppel to compensate an aggrieved party for such expectancy damages. Lost future income expected from an at-will relationship, whether from wages or from profits, is not recoverable on a theory of promissory estoppel, and neither is the present value of such losses.

But the fact is that recovery of lost profits is not a question before us. Bacardi’s account was never an “asset” that National could acquire by purchasing General. As counsel for the defendant candidly but carefully explained, National never assumed that it would retain the Bacardi account by buying General; in fact, National assumed the opposite. Bacardi’s major competitor in the rum distilling business distributed through National, and the two top distillers in a given category of liquor would not choose the same distributor. Both before and after Bacardi decided to withdraw its products, all National wanted from General were its assets other than the Bacardi account. But Bacardi’s repudiation of its promise ostensibly affected the price of General’s business so drastically because, as everyone in the industry understood, General’s option to stay in business independently was destroyed by Bacardi’s withdrawal of its account. Thus, through its repudiation, Bacardi destroyed General’s negotiating leverage since General no longer had the alternative of continuing as an independent concern. Presumably, after Bacardi’s withdrawal General’s only alternative to selling to National was to liquidate. Thus, Bacardi’s repudiation turned General’s discussions with National from negotiations to buy a going concern into a liquidation sale. Instead of bargaining from strength, knowing it could reject a junk-value offer and carry on its business, General was left with one choice: sell at any price.

Under these facts, General had a reliance interest in Bacardi’s promise. General was in lively negotiations with National, and it repeatedly informed Bacardi of this fact. A price was agreed upon, and based on that figure, Stout had to decide whether to close his doors or continue operating. General had a business opportunity that all parties knew would be devalued once Bacardi announced its intention to go elsewhere. The extent of that devaluation represents a reliance injury, rather than an injury to General’s expectation of future *570 profit. The injury is analogous to the cost of moving expenses incurred as a result of promised employment in Eby and Pepsi-Cola.

Nor were these promises merely meaningless restatements of an understood at-will relationship. With its current business opportunity, General stood at a crossroads. Circumstances foreshadowed a costly demise for the company, but it was able to negotiate an alternative. Far from confirming the obvious, Bacardi wrote its assurances on a clean slate with full knowledge that General was just as likely to reject the offered relationship as embrace it. That this was the situation is indicated most clearly by Bacardi’s repeated calls to check on Stout’s impending decision. Bacardi reassured Stout of its commitment in full knowledge that he planned to reject National’s offer and with the reasonable expectation that an immediate pull out would severely undermine General’s asking price. Like the plaintiffs in Eby who moved based on the promise of a job, General incurred a cost in rejecting the deal that was non-recoverable once Bacardi’s later decision became known.

There may always exist the potential for a quandry in a promissory estoppel action based on a promise of at-will employment. When could Bacardi terminate the relationship with General without fear of liability for reliance costs, once it made the assurances in question? Obviously we do not hold that General and Bacardi had formed a new, permanent employment relationship. How long an employee can rely on the employer’s promise is not a matter we can decide here. The issue is one of reasonable reliance, and to the extent that there might be questions, they should be for trial.

III.

We have, of course, reviewed this ease in the posture of summary judgment. General’s allegations still must be proven at trial. However, under Indiana law, we think that Bacardi’s promise was of a sort on which General might rely, with the possibility of damages for breach. For that reason the judgment of the district court is

Reversed and Remanded.

Hiim, C. J.

The Reporter will state the issues and substance of the testimony, and set out instructions one and two given at instance of appellees, and it will be seen therefrom that instruction one amounted to a peremptory instruction to find for the appellees in some' amount.

1. The first question is as to the correctness of this instruction. As indicated therein, the facts are that Mr. Harrison, appellant’s intestate, was thrown from a street car, receiving serious injuries which rendered him unconscious, and while in that condition .the appellees were notified of the accident and summoned to his assistance by some spectator, and performed a difficult operation in an effort to save his life, but they were unsuccessful, and he died without regaining consciousness. The appellant says: “Harrison was never conscious after his head struck the pavement. He did not and could not, expressly or impliedly, assent to the action of the appellees. He was without knowledge or will power. However merciful or benevolent may have been the intention of the appellees, a new rule of law, of contract by implication of law, will have to be established by this court in order to sustain the recovery.” Appellant is right in saying that the recovery must be sustained by a contract by implication of law, but is not right in saying that it is a new rule of law, for such contracts are almost as old as the English system of jurisprudence. They are usually called “implied contracts;” more properly, they should be called quasi-contracts or constructive contracts. See 1 Page on Contracts, § 14; also 2 Page on Contracts, § 771.

The following excerpts from Sceva v. True, 53 N. H. 627, are peculiarly applicable here:

“We regard it as well settled by the cases referred to in the briefs of counsel, many of which have been commented on at length by Mr. Shirley for the defendant, that an insane person, an idiot, or a person utterly bereft of all sense and reason by the sudden stroke of an accident or disease, may be held liable, in assumpsit, for necessaries furnished to him in good faith while in that unfortunate and helpless condition. And the reasons upon which this rests are too broad, as well as too sensible and humane, to be overborne by any deductions which a refined logic may make from the circumstance that in such cases there can be no contract or promise in fact — no meeting of the minds of the parties. . The cases put it on the ground of an implied contract; and by this is not meant, as the defendant’s counsel seems to suppose, an actual contract — that is, an actual meeting of the minds of the parties, an actual, mutual understanding, to be inferred from language, acts and circumstances by the jury— but a contract and promise, said to be implied by the law, where, in point of fact, there was no contract, no mutual understanding, and so no promise. The defendant’s 'Counsel says it is usurpation for the court to hold, as a matter of law, that there is a contract and a promise when all the evidence in the case shows that there was not a contract, nor the semblance of one. It is doubtless a legal fiction, invented and used for the sake of the remedy. If it was originally usurpation, certainly it has now become very inveterate, and firmly fixed in the body of the law.

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“Illustrations might be multiplied, but enough has been said to show that, when a contract or promise implied by law is spoken of, a very different thing is meant from a contract in fact, whether express or tacit. The evidence of an actual contract is generally to be found, either in some writing made by the parties, or in verbal communications which passed between them, or in their acts and conduct considered in the light of the circumstances of each particular case. A contract implied by law, on the contrary, rests upon no evidence. It has no actual existence; it is simply a mythical creation of the law. The laws says that it shall be taken that there was a promise when, in point of fact, there was none. Of course, this is not good logic, for the obvious and sufficient reason that it is not true. It is a legal fiction, resting wholly for its support on a plain legal obligation and a plain legal right. If it were true, it would not be a fiction. There is a class of legal rights, with their correlative legal duties, analogous to the obligationes quasi ex contractu of the civil law, which seem to lie in the region between contracts on the one hand and torts on the other, and to call for the application of a remedy not strictly furnished either by actions ex contractu or actions ex delicto. The common law supplies no action of duty, as it does of assumpsit and trespass; and hence the somewhat awkward contrivance of this fiction to apply the remedy of assumpsit where there is no true contract, and no promise to support it.”

This subject is fully discussed in Beach on the Modern Law of Contracts, 639 et seq., and 2 Page on Contracts, § 771 et seq. One phase in the law of implied contracts was considered in the case of Lewis v. Lewis, 75 Ark. 191.

In its practical application, it sustains recovery for physicians and nurses who render services for infants, insane persons and drunkards. 2 Page on Contracts, § § 867, 897, and 906. And services rendered by physicians to persons unconscious or helpless by reason of injury or sickness are in the same situation as those rendered to persons incapable of contracting, such as the classes above described. Raoul v. Newman, 59 Ga. 408; Meyer v. K. of P., 64 L. R. A. 839.

The court was therefore right in giving the instruction in question.

2. The defendant sought to require the plaintiff to prove, in addition to the value of the services, the benefit, if any, derived by the deceased from- the operation, and alleges error in the court refusing to so instruct the jury. The court was right in refusing to place this burden upon the physicians. The same question was considered in Ladd v. Witte, 116 Wis. 35, where the court said: “That is not at all the test. So that a surgical operation be conceived and performed with due skill and care, the price to be paid therefor does not depend upon the result. The .event so generally lies with the forces of nature that all intelligent men know and understand that the surgeon is not responsible therefor. In absence of express agreement, the surgeon, who brings to such a service due skill and care earns the reasonable and customary price therefor, whether the outcome be beneficial to the patient or the reverse.”

3. ‘ The court permitted to go to the jury the fact that Mr. Harrison was a bachelor, and that his estate would go to his collateral relatives, and also permitted proof to be made of the value of the estate, which amounted to about $18,500, including $10,000 from accident and life insurance policies.

There is a conflict in the authorities as to whether it is proper to prove the value of the estate of a person for whom medical services were rendered, or the financial condition of the person receiving' such services. In Robinson v. Campbell, 47 Ia. 625, it was said: “There is no more reason why this charge should be enhanced on account of the ability of the defendants to pay than that the merchant should charge them more for a yard of cloth, or the druggist for filling a prescription, or a laborer for a day’s work.” On the other hand, see Haley’s Succession, 50 La. Ann. 840; and Lange v. Kearney, 4 N. Y. Supp., 14, which was affirmed by the Court of Appeals, 127 N. Y. 676, holding that the financial condition of the patient may be considered.

Whatever may be the true principle governing this matter in contracts, the court is of the opinion that the financial condition of a patient cannot be considered where there is rio contract and recovery is sustained on a legal fiction which raises a contract in order to afford a remedy which the justice of the case requires.

In Morrissett v. Wood, 123 Ala. 384, the court said-: “The trial court erred in admitting testimony as to the value of the patient’s estate, against the objection of the defendant.. The inquiry was as to the value of the professional services rendered by the plaintiff to the defendant’s testator, and, as the case was presented below, the amount or value of the latter’s estate could shed no legitimate light upon this issue nor aid in its elucidation. The cure or amelioration of disease is as important to a poor man as it is to a rich one, and, prima facie at least, the services rendered the one are of the same value as the same services rendered to the other. If there was a recognized usage obtaining in the premises here involved to graduate professional charges with reference to the financial condition of the person for whom such services are rendered, which had been so long established and so universally acted upon as to have ripened into a custom of such character that it might be considered that these services were rendered and accepted in contemplation of it, there is no hint of it in the evidence.”

There was evidence in this case proving that it was -customary for physicians to graduate their charges by the ability of the patient to pay, and hence, in regard to that element, this case differs from the Alabama case. But the value of the Alabama decision is the reason given which may admit such evidence, viz., because the custom would render the financial condition of the patient a factor to be contemplated by both parties when the services were rendered and accepted.

The same thought, differently expressed, is found in Lange v. Kearney, 4 N. Y. Supp. 14.

This could not apply to a physician called in an emergency by some bystander to. attend a stricken man whom he never saw or heard of before; and certainly the unconscious patient could not, in fact or in law, be held to have contemplated what charges the physician might properly bring against him. In order to admit such testimony, it must be assumed that the surgeon and patient each had in contemplation that the means of the patient would be one factor in determining the amount of the charge for the services rendered. While the law may admit such evidence as throwing light upon the contract and indicating what was really in contemplation when it was made, yet a different question is presented when there is no contract to be ascertained or construed, but a mere fiction of law creating a contract where none existed in order that there might be a remedy for a right. This fiction merely requires a reasonable compensation for the services rendered. The services are the same, be the patient prince or pauper, and for them the surgeon is entitled to fair compensation for his time, service and skill. It was, therefore, error to admit this evidence and to instruct the jury in the 2nd instruction that in determining what was a reasonable charge they could consider the “ability to pay of the person operated upon.”

It was improper to let it go to the jury that Mr. Harrison was a bachelor, and that his estate was left to nieces and nephews. This was relevant to no issue in the case, and its effect might well have been prejudicial. While this verdict is no higher than some of the evidence would justify, yet it is much higher than some. of the other evidence would justify, and hence it is impossible to say that this was a harmless error.

Judgment is reversed and cause remanded.