| Summary: | GILE v. INTERSTATE MOTOR CAR CO. 135 formance, could not of itself remedy a lack of mutuality and so make a contract. But admittedly full performance would cure want of mu tuality, and that which had not amounted to an executory contract would he considered as an executed one, and whereas, because of want of mutuality, no obligations had theretofore existed to perform, that defect may be eliminated by performance and the agreement become an executed contract. To what extent has this contract been executed ? The answer necessitates a consideration of § 5365, Rev. Codes, 1905, defining executed and executory contracts, in connection with § 5311, further qualifying such statutory definition. The former section reads : "An executed contract is one the object of which is fully performed; all others are executory." The object of contract, within § 5311, is de fined to be: "The object of a contract is the thing which it is agreed on the part of the party receiving the consideration to do or not to do." Our statutory definition of executed and executory contracts is identical with and was probably taken from what is now § 1661 of Kerr's Anno. Codes of California. If we treat this agreement as containing both an agency and a sale feature, a contention most favorable to respondent's contention, nevertheless we find that title has not passed to a single automobile or part concerned in such sale feature, and the transfer of title has been held to be the test in California under their Code, § 1661. Until transfer of title of the subject-matter of a contract of sale, the contract remains executory under said section. See Lassing v. James, 107 Cal. 348, 40 Pac. 534; Yukon River S. B. Co. v. Gratto, 136 CaL 538, 69 Pac. 252; Cardinell v. Bennett, 52 Cal. 476. For the holdings and definitions of executed and executory contracts, see Knudtson v. Robinson, 18 N. D. 12, 118 N. W. 1051; Fox v. Kitton, 19 Ill. 519; Farrington v. Tennessee, 95 U. S. 679, 24 L. ed. 558 Fletcher v. Peck, 6 Craneh, 87-136, 3 L. ed. 162-177; Cincinnati, H. & D. R. Co. v. McKeen, 12 C. C. A. 14, 24 U. S. App. 218, 64 Fed. 36-46 Adams v. Reed, 11 Utah, 480, 40 Pac. 720 State v. Jersey City, 31 N. J. L. 575, 86 Am. Dec. 240; Keokuk v. Ft. Wayne Electric Co. 90 Iowa, 67, 57 X. W. 689 Watson v. Coast, 35 W. Va. 463, 14 S. E. 249. South Dakota, in construing this identical statute in Mettel v. Gales, 12 S. D. 832, 82 K. W. 181, says: "Executed contracts are not prop erly contracts at all. The term is used to signify rights in property which have been acquired by means of contract. The parties are no
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