This appeal from a summary judgment for the plaintiff entered on the pleadings and affidavits in suit on a letter contract,1 presents the single question whether, as contended by appellant, there existed a genuine issue as to material fact, and the case was not one for summary judgment, or whether as found by the district judge and contended by appellee, the case presented merely a question of law, and the summary judgment was right.

It was appellant's position below, it is its position here that by allegations in paragraph 32 of its answer, that plaintiff was discharged for cause and through his own fault and there has been no involuntary severance within the terms of the contract, and of par. 4, that the consideration for plaintiff's employment contract has failed, substantial and determinative issues of fact were raised.

We agree with appellant that this is so. Indeed, we think that, in accepting plaintiff's contention that the determination of the fact issues tendered by defendant was without bearing on the decision of the cause, the district judge completely overlooked the essential flesh and blood character of the facts alleged, and the issues legal and enquitable to which they gave rise. All of appellee's contentions and arguments to the contrary proceed from, they are based upon, his ignoring or failing to see and understand that their acceptance leads inescapably to the conclusion that in consideration for defendant's promise, plaintiff did not in his turn promise to discharge his duties to the best of his ability, indeed did not promise anything. Such a conclusion is without support in fact, in law, and in morals.

That it is without support in fact, a mere reading of the letters, which, breathing as a whole mutual confidence and reliance upon the promise3 each had made, contain specific assurances of a quid pro quo, will plainly show.

That it is without support in law is equally clear. Indeed, it is hornbook law that where there is no consideration, there is no contract, and that where the consideration is a promise for a promise, if a contract fails to contain an express counter-promise, one will be implied.

In Gulf, Mobile & Ohio R. Co. v. Illinois Central R. Co., D.C., 128 F. Supp. 311, at page 324, affirmed 5 Cir., 225 F.2d 816, the principle is thus stated:

'A contracting party impliedly obligates himself to cooperate in the performance of his contract and the law will not permit him to take advantage of an obstacle to performance which he has created or which lies within his power to remove.' Citing authorities, including Williston on Contracts, Rev.Ed.Sec. 1293 & 1293(a) Vol. 5. 'Implied promise not to prevent or hinder performance.'

That the contention pressed upon us by appellee is without support in morals is plainly seen when it it considered that to allow plaintiff to profit by his own wrong in doing the things he is charged with doing would result in a wholly unjust enrichment to him, in fact in constructive fraud.

'The clean hands maxim is cognate with numerous other principles which equity invokes in refusing relief to wrongdores * * * a right cannot arise to anyone out of his own wrong; no one should be permitted to profit by, or take advantage of, his own wrong.' 30 C.J.S. Equity 94, pp. 477-478.

In consideration for its agreement to pay $25,000 to plaintiff, the defendant was entitled to receive the consideration that plaintiff would bring to the performance of his duties requiring leadership and executive ability the best that was in him. At the very least, he had agreed that he would not be guilty of misconduct, neglect of business, intemperance, insobriety, and intoxication, and that he would discharge his duties with such decency of deportment and propriety of conduct as not to work injury to his employer and in consequence to defendant. 35 Am.Jur., 'Master and Servant', Sec. 40, p. 473, Sec. 82, at p. 514; Sec. 43, at p. 477.

Under defendant's allegations which for the purpose of this appeal must be accepted as true, plaintiff has not done one single act in consideration of defendant's promise to him, defendant has received nothing but injury, James Heddon's Sons, in which as the letters show the interest of both plaintiff and defendant were bound up, has received nothing but injury. Hence, if what defendant alleges is true, due to plaintiff's failure to perform, the consideration for the contract as a whole has failed, and it is unenforceable.

'Want or failure of consideration is ground for concellation or rescission of a contract, since as to a person who receives nothing whatever of value in exchange for property, the transaction operates as constructive or legal fraud.' 10 Tex.Jur., 'Contracts', Sec. 65, page 114.4

Appellee in effect agreeing that the defensive matters of failure of consideration, raised by appellant, would be highly material in a suit by an employee against his employer upon a simple contract of employment, argues: that the suit is not such; that it is upon a separate and distinct contract with a party other than the employer; and that the whole point of the agreement is to give the plaintiff protection and security that he would not have under the employment contract itself.

In so arguing, he seems to consider that the only question of importance is the consideration moving to him, and that the consideration for the promise moving from him to the promisor is of no importance.

This will not at all do. In emphasizing plaintiff's dependence upon the defendant's promise to give him the security that he needed, while overlooking entirely his counter promise, 'I am delighted with the opportunity at Heddon's, and I will put forth every effort to meet the challenge to your satisfaction', plaintiff makes it clearer than even appellant's arguments have done, that plaintiff necessarily looks upon defendant's promise to him as unsupported by any counter promise from him.

His argument thus impales him on the horns of a dilemma from which there is no escape except a trial of the case on its merits and a refutation thereon of the charges defendant makes against him. For if there was no consideration for defendant's promise, if, in short, the promise of the defendant was wholly unilateral, the so-called contract is a mere nudum pactum, and the plaintiff cannot, therefore, recover on it.

If, on the other hand, plaintiff fave a promise in consideration for the promise and the defendant's charges against plaintiff are correct, the consideration has failed, and for that reason plaintiff may not recover. In either event, as the record stands before us with defendant's charges undenied, plaintiff was not entitled to recover, and he is, therefore, driven to the necessity of conceding that his so-called contract was without consideration or, if he claims that it was, of defending the suit on the facts.

The summary judgment is reversed and the cause is remanded for a trial on the merits and for further and not inconsistent proceedings.