[1] We agree with the conclusion arrived at by the trial court, in the construction of the writing, that the provisions in the mortgage that defendant should have the right to market the crops and receive therefor the prevailing rates or commissions for that service and that plaintiff should purchase the mentioned supplies from defendant, etc., were incorporated into the instrument for the purpose of protecting and preserving the security for the payment of the note. It is probable also that said provisions contemplated another purpose, to wit: To give to the defendant the profits accruing from its services in the marketing of the fruit and from furnishing to the plaintiff the supplies required in the proper preparation of the fruit, when harvested, for marketing.

It will be noted that the language or sentence introducing the provisions referred to into the instrument commences with the word "also," and that the provision requiring the plaintiff to place "his entire crop of grapes" for the three seasons named in the hands of the defendant "to market for his account" expressly states that it shall constitute a part of the consideration for the loan of the money evidenced by the note to secure which the mortgage was given. The salient part of the language or sentence is: "Also, in consideration of the sum herein before mentioned, the party of the first part hereby places his entire crop of grapes for the seasons of 1919-20-21 . . . in the hands of the second party to market for his account." It will be observed that it is not by language expressly provided, nor is it reasonably susceptible to that construction when it is considered in connection with the other provisions of the instrument, that "the mortgage is intended to secure and does secure the right of the defendant to the possession of the fruit when harvested." It merely says and plainly means that by it the defendant, as part of the consideration for the loan of the money, and also as further security for its repayment, shall be entitled to the possession of the fruit for the years named and to market the same for and on account of the plaintiff. The same is true as to the provision whereby the plaintiff agreed to purchase the supplies necessary for preparing the grapes for shipment or marketing from the defendant-that is, the same is true

of that provision in so far as the matter of the consideration for the note was concerned.

The result of the foregoing views is that the mortgage was intended to secure the payment of the note and not to secure to the defendant the right to the possession of and to market the fruit when harvested or the right to furnish supplies to the plaintiff. These latter rights, as stated, were intended only as additional consideration for the note and as security, other than the mere mortgage itself, for the payment of the note. The plaintiff testified that, when negotiating for the loan and before he obtained it, he was told by defendant's agents that he would have to sign a marketing contract to market the crops for three years. The transaction was then reduced to writing, which writing embraced not only the mortgage to secure the payment of the note, but a shipping contract to which, as we conclude, the mortgage has no more relation than if the two agreements were in separate or different writings.

It may further be observed that the provisions of the mortgage could not be held to operate as a lien to secure the performance by the plaintiff of the agreement to place the grapes with defendant for marketing and to purchase supplies from the latter in any event unless, in case of default by plaintiff to perform these agreements, the defendant suffered some detriment or damage. In other words, it would hardly be in consonance with the principles of justice, or, indeed, with common sense, to hold that, although the defendant suffered no injury or loss from the default of the plaintiff in complying with the agreements referred to, it could, nevertheless, upon such default by plaintiff, proceed to foreclose the mortgage and cause the plaintiff's grape crops to be sold under the decree of foreclosure, for what purpose? If, however, the defendant should suffer loss or damage by the failure of the plaintiff to place the grapes with it to market or by his default in complying with his agreement to purchase supplies from the defendant, then it would have to be ascertained what that loss or damage was, and, if any be found, what damages, measured in money, would compensate the defendant for the loss so suffered by it. We have never heard of a mortgage being given to secure the payment of damages for the breach of a contract and we do not think that any such

a mortgage is to be found referred to in the books. Ordinarily, the security taken to insure the performance of such agreements as we are now considering is in the nature of a bond, and the remedy available to the party for whose benefit the bond is given, in case of a breach of the contract, is legal and not equitable, as is true in the case of the foreclosure of a lien.

[2] It is very true, as counsel for the defendant point out, a mortgage may be given to secure future advances, the amount of which may not be ascertainable until proceedings in foreclosure are ripe (Tapia v. De Martini et al., 77 Cal. 383, [11 Am. St. Rep. 288, 19 Pac. 641]); or to secure indorsements made and to be made (Brander v. Bowmar et al., 16 La. 370; Kramer v. Trustees of F. & M. Bank, 15 Ohio, 253); or to secure payment for merchandise, not exceeding a specified amount, to be delivered at different intervals of time in the future. (Marvin, Assignee in Bankruptcy, etc., v. Chambers, 12 Blatchf. 495, [Fed. Cas. No. 9179].)

In Stoughton v. Pasco, 5 Conn. 442, [13 Am. Dec. 72], cited in 1 Jones on Mortgages, sixth edition, as authority for the statement therein "that a mortgage to secure the fidelity of an agent or factor is good," it is held, using the language of the syllabus: "Where one of two joint trustees of the property of a deceased person for the benefit of legatees executed a mortgage to the other to render a true account and pay over and deliver to the mortgagee all moneys, notes, and securities of the estate in the mortgagor's hands, such mortgage was held a valid encumbrance to the amount due, which was found to be $3,137 as against a subsequent mortgage with actual notice. of an adjustment between the mortgagor and first mortgagee, and that there was more than two thousand eight hundred dollars due."

[3] But it is manifest that the case here does not come within the principles of the above cases. There never has been any doubt that a mortgage given to secure an unliquidated debt may be upheld. An "unliquidated debt," however, within the meaning of that expression as it is used in the sense that its payment is capable of being secured by a mortgage, is a debt which, while not actually existing when the contract of hypothecation is made, is, from the

nature of the contract and the whole subject matter thereof, inherently capable of coming into existence. It simply means a debt the exact amount of which cannot be known at the time that the mortgage is given. In the present case, as has been stated, whether there will be any debt at all, is problematical and remote, for it must depend, first, upon whether there is a breach of the agreement and, if so, upon the very uncertain result of the trial in court of a disputed question of fact or of law or both. The result would have to be reduced to a judgment to make it amount to a debt. In view of all these considerations, of which the parties may be assumed to have taken cognizance when entering into the contract, we think it is clear that the mortgage was intended to cover the grape crops for the years named as security only for the note, and that the provisions relating to the marketing of the grapes and the furnishing the plaintiff with supplies were, as the trial court concluded, solely intended to preserve the security or operate as additional security for the payment of the note and also perhaps to give to defendant the benefit of such commissions as accrued from its services in marketing the grapes and of the profits resulting from the sale to plaintiff of the supplies.

In the transcript the defendant sets out certain specifications of error in the rulings of the court upon the evidence and also on the motion to strike out certain portions of the answer. The rulings, the correctness of which is so challenged, bear directly upon and involve the question of the construction of the language of the instrument which we have considered, and thus practically the assignments themselves have been herein considered and disposed of.

The judgment is affirmed.

Ellison, P. J., pro tem., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 18, 1919, and the following opinion then rendered thereon:

THE COURT.-In denying the application for a hearing in this court after decision by the district court of appeal

of the third appellate district, we desire to say that in so far as the opinion of the district court of appeal may be construed as holding that a mortgage may not be given to secure damages that may arise from a breach of contract, we express or intimate no opinion as to the correctness thereof. This matter is not essential to the decision.

The application for a hearing in this court is denied.

All the Justices concurred, except Melvin, J., who was absent.

[Civ. No. 3019. Second Appellate District, Division Two.-October 20, 1919.]

HARRY S. VAN DEMARK, Respondent, v. CALIFORNIA HOME EXTENSION ASSOCIATION (a Corporation), et al., Appellants.

[1] CONTRACTS--"DISSATISFACTION CLAUSES"-EXERCISE OF RIGHT.The distinction is well recognized-though the line cannot always be very clearly drawn-in actions arising on "dissatisfaction clauses" of contracts that where the right involved is one which is submitted to the taste or fancy, feeling, or judgment of the party in whose favor the option is given, it may be exercised without any practical or utilitarian reason; but when it is apparent that the question of satisfaction relates to the commercial value or quality of the subject matter of the contract, it must be shown that it is deficient or defective in these respects, and that the dissatisfaction is reasonable and well founded.

[2] ID. GENERAL RULE-PARTY TO BE JUDGE GOOD FAITH.-Where there is nothing to justify the contrary construction, the general rule is that the party to be satisfied is the judge of his own satisfaction, subject only to the limitation in most jurisdictions that he must act in good faith; and if he does so act and is really dissatisfied, he may reject the work or the article on the ground that it is not satisfactory to him.

[3] ID.

PERSONAL DISSATISFACTION OF BUYER-ELEMENT OF VALUES OR QUALITY IMMATERIAL.—Where it is clear that the purpose of an agreement to repurchase in the event the buyer should become "dissatisfied with the investment" is to submit the matter to the personal option and judgment of the purchaser, the exercise of this right is not dependent upon a failure in value of the property, or