Sayward

The court below sustained a demurrer interposed by defendant Houghton to the complaint, and entered judgment dismissing the action, from which plaintiff appeals. The only question involved in the appeal is whether the complaint states a cause of action.

*547 The averments of the complaint, so far as material here, are in substance that W. T. Sayward, plaintiff’s intestate, being the owner of three thousand shares of the capital stock of the corporation defendant, the Eiverside Land and Irrigation Company, transferred the same to one Felton, as security for the payment of a certain promissory note, with power of sale in Felton on default of the payment of the note; that the note not being paid, the stock was thereafter, on March 16, 1887, duly sold by Felton to one George Loomis for forty-six thousand dollars, to satisfy the note; that subsequent to said pledge, and prior to the sale, said stock had greatly increased in value, and at the date of the sale, and thereafter, and at the time of bringing this action, was of far greater value than the amount for which it was sold, to wit, of the value of one hundred and seventy-four thousand dollars; that neither Felton nor Loomis, by…

I dissent from the order denying a rehearing of this case. As I construe the complaint it shows that Houghton purchased the stock for himself and merely gave plaintiff’s intestate an option to purchase it from him upon payment within six months of fifty thousand dollars, with interest, *551 and a bonus of five thousand dollars. There was no advance of money to Sayward by way of loan and no personal obligation o-n the part of Sayward to pay Houghton anything. He merely bargained for an option to purchase.

For granting this option Houghton received a valuable consideration in being allowed at Sayward’s request, and for his con-: tingent benefit, to purchase the stock at a price below its real or -estimated value. This consideration was sufficient to support Houghton’s agreement granting the option, and Sayward’s election to purchase and offer to perform, if made at any time within six months, would have supplied the element of mutuality necessary to warrant a decree of specific performance, if in other respects the contract was enforceable.

But if the action is one for specific performance (and I can regard it in no other light), the most serious question arises out of the fact…