Gholson, J.
The petition in this case seeks to recover a specific amount,, as a debt becoming due on the tender of the stock. It states that the stock was tendered, payment of the sum which, by the contract, was to be given for the stock demanded, and that the defendant refused to accept the stock and to pay the amount so demanded, and a judgment is therefore asked for that amount and interest.
Regarded as an action of debt — as an action to recovera cer tain sum — it is questionable whetherit could be maintained — . the contract being very clearly executory, and no title to the stock having passed, in fact neither the company nor its stock being in existence at the time of the contract, and no assent of the defendant at any time thereafter to become a stockholder being shown.
The rule in England appears to be, that on an executory contract for the sale of property, where an agreed price is to be paid on the transfer of a title to the property, the remedy for a refusal to complete the contract by acceptance and payment, is an action for the damages sustained thereby. Laird v. Pim, 7 Mees. & Welsh. 474, 478. The principle appears to be, that a party can not retain the title to the property and also recover the price, and to pass the title the assent of the other party is requisite. This assent may, in a proper case, be enforced in a court of equity; but in .amere action on the contract to recover the price, that can not be done. There are American cases which hold that in such cases, after a tender, an action to recover the price, may be maintained. Alna v. [91]*91Plummer, 4 Greenl. 258; Bement v. Smith, 15 Wend. 493. It was said of these cases, in Shannon v. Comstock, 21 Wend. 457, 460, by Cowen, J.: “I admit that in some cases, where property is so tendered, and the tender is not withdrawn, the price may he recovered; but this is on the ground that the thing sold has an independent existence, and the corpus not being perishable, and having legally passed by the tender and subsequent recovery, may still be actually delivered over whenever the vendee shall demand it.” The reasoning of the court, in Thompson v. Alger, 12 Metc. 428, and in Allen v. Jarvis, 20 Conn. 88, appears to sustain the English rule, though an exception was allowed under the circumstances of those cases. The language of the court, in Sawyer v McIntyre, 18 Vt. 27 — 81, accords with that rule. The case of Garrard v. Dollar, 4 Jones L. 175, is to the contrary. But it is not ne, cessary that we should pass on this point. The facts are stated in the petition, and an amendment claiming damages, instead of a specific amount, if necessary, could be readily made. Indeed, on demurrer, the difference between the demand of a specific amount as a debt due and the same amount as damages for the breach of the contract, might not be regarded as fatal to a petition. We therefore proceed to consider the question, upon which the right of'the plaintiff to maintain the action depends.
If the instrument sued on in this case showed simply an agreement on the part of the defendant to accept and pay for stock in a turnpike company, thereafter to come into existence, and which could not he a party to the instrument, or be bound to furnish the stock, there could certainly he no contract binding on the defendant for the want of mutuality. A written stipulation to take stock in a turnpike company which is not in existence, can not be enforced by the contemplated turnpike company when it comes into existence, because it would be under no obligation to do the act which is the consideration for the promise of the other party, to furnish the stock. But it is said that the objection of a want of mutuality “ must be confined to those cases where the want of mutuality would leave one party without a valid or avail[92]*92able consideration for his promise.” Arnold v. Mayor of Poole, 4 M. & G. 861-896. And to this it has been replied, that, “ It is difficult to conceive a case where there should be a valid consideration on both sides, and yet a want of mutuality.” Smith on Contracts, 88, note. “ Every contract consists of a request on one side, and an assent on the other.” Jackson v. Galloway, 5 Bing. N. C. 75. “These are the terms of mutuality : if either are absent, there is no contract. The request may be express or implied, and likewise the promise or assent. Both are far oftener implied than expressed in simple contracts. The cases in which the request or the promise are express, require little comment. The ordinary meaning of the words used will determine the legal effect, according to the established rules of construction. The assent to the contract must be to the precise terms offered.” “A contract,” says Pothier, “includes a concurrence of intention in two parties, one of whom promises something to the other, who on his part accepts such promise.” Hence is assent or acceptance indispensable to the validity of every contract; for “ as I can not ” continues Pothier, “ by the mere act of my own mind transfer to another a right in any goods, without a concurrent intention on his part to accept them, neither can I by any promise confer a right against any per-, son until the person to whom the promise is made has, by his acceptance of it, concurred in the intention of acquiring such right, Wherever there is not assent, express or implied, to the terms‘of the proposed contract by both parties, there is no mutuality, and no contract.” Smith on Contracts, 88, note.
“ In contracts, where the promise of the one party is the consideration for the promise of the other, the promises must be concurrent and obligatory upon both at the same time.” Nichols v. Raynbred, Hobart, 88b; Tucker v. Woods, 12 Johns. 190, 192; Reep v. Goodrich, 12 Johns. 397; 1 Ohitty on Pl. 325; Story on Cont., sec. 448; Addison on Cont. 34. But where the consideration is not the promise, but the doing of some act, which being done would constitute a valid consideration, then assent to the contract may be shown by doing [93]*93the act. The promise to pay a certain sum on the doing a certain act, which will benefit the promisor or prejudice the promisee, implies a request to do the act, and unless such request be withdrawn before it is complied with, the doing the act is an assent, and the promise becomes obligatory:, In such a case, performance is an assent to the terms proposed* But suppose the terms proposed were such, as to require the doing of one thing' and a promise to do another thing, then in the language which has been quoted, “ the assent to the contract .must be to the precise terms offered.” If there was no mutual promise there would be no contract, but if the thing should be done and a benefit derived therefrom, the party might be charged on an implied agreement to pay the value.
We think it doubtful, whether a fair construction of the instrument under consideration shows a request to locate the road across the farm of the defendant. The contingency that it might be so located, was contemplated, and in the event that it should be, then, the defendant bound himself to build the road or pay for the building, at the engineer’s estimate, and take the amount in stock. But there was not, nor could there have been, any promise then made by the plaintiff to permit the building of the road or to deliver the stock. The case would then fall within the principle of Cooke v. Oxley, 3 T. R.
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Gholson, J.
The petition in this case seeks to recover a specific amount,, as a debt becoming due on the tender of the stock. It states that the stock was tendered, payment of the sum which, by the contract, was to be given for the stock demanded, and that the defendant refused to accept the stock and to pay the amount so demanded, and a judgment is therefore asked for that amount and interest.
Regarded as an action of debt — as an action to recovera cer tain sum — it is questionable whetherit could be maintained — . the contract being very clearly executory, and no title to the stock having passed, in fact neither the company nor its stock being in existence at the time of the contract, and no assent of the defendant at any time thereafter to become a stockholder being shown.
The rule in England appears to be, that on an executory contract for the sale of property, where an agreed price is to be paid on the transfer of a title to the property, the remedy for a refusal to complete the contract by acceptance and payment, is an action for the damages sustained thereby. Laird v. Pim, 7 Mees. & Welsh. 474, 478. The principle appears to be, that a party can not retain the title to the property and also recover the price, and to pass the title the assent of the other party is requisite. This assent may, in a proper case, be enforced in a court of equity; but in .amere action on the contract to recover the price, that can not be done. There are American cases which hold that in such cases, after a tender, an action to recover the price, may be maintained. Alna v. [91]*91Plummer, 4 Greenl. 258; Bement v. Smith, 15 Wend. 493. It was said of these cases, in Shannon v. Comstock, 21 Wend. 457, 460, by Cowen, J.: “I admit that in some cases, where property is so tendered, and the tender is not withdrawn, the price may he recovered; but this is on the ground that the thing sold has an independent existence, and the corpus not being perishable, and having legally passed by the tender and subsequent recovery, may still be actually delivered over whenever the vendee shall demand it.” The reasoning of the court, in Thompson v. Alger, 12 Metc. 428, and in Allen v. Jarvis, 20 Conn. 88, appears to sustain the English rule, though an exception was allowed under the circumstances of those cases. The language of the court, in Sawyer v McIntyre, 18 Vt. 27 — 81, accords with that rule. The case of Garrard v. Dollar, 4 Jones L. 175, is to the contrary. But it is not ne, cessary that we should pass on this point. The facts are stated in the petition, and an amendment claiming damages, instead of a specific amount, if necessary, could be readily made. Indeed, on demurrer, the difference between the demand of a specific amount as a debt due and the same amount as damages for the breach of the contract, might not be regarded as fatal to a petition. We therefore proceed to consider the question, upon which the right of'the plaintiff to maintain the action depends.
If the instrument sued on in this case showed simply an agreement on the part of the defendant to accept and pay for stock in a turnpike company, thereafter to come into existence, and which could not he a party to the instrument, or be bound to furnish the stock, there could certainly he no contract binding on the defendant for the want of mutuality. A written stipulation to take stock in a turnpike company which is not in existence, can not be enforced by the contemplated turnpike company when it comes into existence, because it would be under no obligation to do the act which is the consideration for the promise of the other party, to furnish the stock. But it is said that the objection of a want of mutuality “ must be confined to those cases where the want of mutuality would leave one party without a valid or avail[92]*92able consideration for his promise.” Arnold v. Mayor of Poole, 4 M. & G. 861-896. And to this it has been replied, that, “ It is difficult to conceive a case where there should be a valid consideration on both sides, and yet a want of mutuality.” Smith on Contracts, 88, note. “ Every contract consists of a request on one side, and an assent on the other.” Jackson v. Galloway, 5 Bing. N. C. 75. “These are the terms of mutuality : if either are absent, there is no contract. The request may be express or implied, and likewise the promise or assent. Both are far oftener implied than expressed in simple contracts. The cases in which the request or the promise are express, require little comment. The ordinary meaning of the words used will determine the legal effect, according to the established rules of construction. The assent to the contract must be to the precise terms offered.” “A contract,” says Pothier, “includes a concurrence of intention in two parties, one of whom promises something to the other, who on his part accepts such promise.” Hence is assent or acceptance indispensable to the validity of every contract; for “ as I can not ” continues Pothier, “ by the mere act of my own mind transfer to another a right in any goods, without a concurrent intention on his part to accept them, neither can I by any promise confer a right against any per-, son until the person to whom the promise is made has, by his acceptance of it, concurred in the intention of acquiring such right, Wherever there is not assent, express or implied, to the terms‘of the proposed contract by both parties, there is no mutuality, and no contract.” Smith on Contracts, 88, note.
“ In contracts, where the promise of the one party is the consideration for the promise of the other, the promises must be concurrent and obligatory upon both at the same time.” Nichols v. Raynbred, Hobart, 88b; Tucker v. Woods, 12 Johns. 190, 192; Reep v. Goodrich, 12 Johns. 397; 1 Ohitty on Pl. 325; Story on Cont., sec. 448; Addison on Cont. 34. But where the consideration is not the promise, but the doing of some act, which being done would constitute a valid consideration, then assent to the contract may be shown by doing [93]*93the act. The promise to pay a certain sum on the doing a certain act, which will benefit the promisor or prejudice the promisee, implies a request to do the act, and unless such request be withdrawn before it is complied with, the doing the act is an assent, and the promise becomes obligatory:, In such a case, performance is an assent to the terms proposed* But suppose the terms proposed were such, as to require the doing of one thing' and a promise to do another thing, then in the language which has been quoted, “ the assent to the contract .must be to the precise terms offered.” If there was no mutual promise there would be no contract, but if the thing should be done and a benefit derived therefrom, the party might be charged on an implied agreement to pay the value.
We think it doubtful, whether a fair construction of the instrument under consideration shows a request to locate the road across the farm of the defendant. The contingency that it might be so located, was contemplated, and in the event that it should be, then, the defendant bound himself to build the road or pay for the building, at the engineer’s estimate, and take the amount in stock. But there was not, nor could there have been, any promise then made by the plaintiff to permit the building of the road or to deliver the stock. The case would then fall within the principle of Cooke v. Oxley, 3 T. R. 653, in which there was a proposal to sell goods to the plaintiff, and an agreement to give him a certain time to determine if he would take them. He determined to take them within the time and gave notice thereof, requested a delivery of the goods and offered to pay the price, but it was held, that he not being bound by the original contract, there was no consideration to bind the other party. This principle was acted on in Burnell v. Johnson, 4 Johns. 235. In the case of Branch Bank at Huntsville v. Steele, 10 Ala. 915, there was an agreement by the bank to receive state bonds at a future day in discharge of a debt, but the debtor was not also bound to deliver the bonds, and the contract was held to be not binding on the bank for want of mutuality, and therefore di not discharge an indorser who relied upon it as a defense.
[94]*94Assuming, however, that the locating the road across the farm of the defendant, entered into the consideration, it was, as admitted by the counsel for the plaintiff, only a part of the consideration, and a silent assent by the performance of that part of the consideration, would not, according to the principles above stated, suffice. It may be true, that “ if a contract has been executed by the performance of the act forming the consideration for the promise, then it is no answer to an action, to say that the plaintiff was not, by the terms of the original contract, hound to do the act, and there was consequently no mutuality of obligation.” Addison on Contracts, 35. Rut this rule does not appear to be applicable, where the act done only constitutes a part of the consideration and shows no assent to the terms of the contract. The objection of the want of mutuality is avoided, because the contract shows a request to do the act and an agreement to be bound upon its being done, and the doing the act is an assent to those terms. This can not be said, where the terms of the contract require more than a silent performance of a part of the consideration, and shows that there was no intention to be bound, unless there was a mutual obligation to perform the other part of the consideration, in its nature concurrent. The rule certainly can not apply in this case, where that which is alleged to have been part of the consideration and to have been performed, does not necessarily connect itself with the defendant, and may or may not have been done with a view of assenting to the promise of the defendant. . Without something more than the act of locating the road across the farm of the defendant, it would be impossible for the defendant to show that it constituted an agreement on the part of the turnpike company. Had the stock on the completion 'of the road advanced to above its par value, and the defendant been desirous to procure stock equal to the amount of the estimate for building the part of the road described in the instrument, he certainly could not sustain his claim by showing the written instrument and the fact of the location of the road. He would be bound to show assent in some other way, and other evidence of assent being requisite [95]*95to bind the company, it is also requisite to bind the defendant.
We have been asked by the counsel for the plaintiff, if we found there was no mutuality in the contract, still, to look at the conduct of the defendant — his purpose in the execution of the instrument. But we do not see how we can look at the conduct of the defendant with any other view, than to ascertain whether he has entered into a contract, in such a case as this, it is not our province to decide as to the propriety of the conduct of the party. We have only to inquire whether he has incurred a legal obligation, and being of opinion for the reasons which have been stated, that he has not, the judgment of the court of common pleas will be affirmed.
Judgment affirmed.
Sutliff, C. J., and Peck, Brinkerhoff and Scott, JJ., concurred.