See also Baum v. Beacon Feeds, Beacon Div. of Textron, Inc., 31 A.D.2d 734, 734 (4th Dep't 1968) ("A promise void when made for want of mutuality of obligation becomes valid and binding upon the performance by the promisee of that in consideration of which such promise was made." (citing Willetts v. Sun Mut. Ins. Co., 45 N.Y. 45, 47 (1871))); Mar-Bond Beverage Corp. v. Dublin Distributors, Inc., 9 A.D.2d 951, 951-52 (2d Dep't 1959) ("[P]laintiff alleged that, for 45 months prior to cancellation of the contract by defendants, it sold defendants' product and built up a demand therefor. Such performance, on plaintiff's part, would render the contract binding and enforcible, even if it had lacked mutuality at its inception.").

In my opinion, the defendant's claim would be right if the undertaking or arrangement made had not been carried out. That is, there was no obligation or consideration between the parties at the time the arrangement was made which obliged the defendant to make use of the tip and which would have rendered him liable for a rise in the value of the stock for the non-fulfillment or non-performance of his promise that he would act on the tip when he received it, and would carry 100 shares for the plaintiff, but, when the mutual promises made as to what each was to do in bringing about the result were fulfilled, considerations attached which relate back to the making of the promises and performance of all their conditions became obligatory. See Willetts v. Sun Mutual Ins. Co., 45 N.Y. 45-47. The defendant desired the plaintiff to give him a tip or information. He promised to act upon it, and in return for receiving it promised to carry 100 shares of stock for the plaintiff to a point loss, and receiving the tip from the plaintiff he acts on it — informs plaintiff, to quote his own words, "We are on," receives further information regarding the possible advance in the price, and instructions from plaintiff when to sell and a profit is realized.

That disposes of the first count. Willetts v. Sun Mutual Ins. Co., 45 N.Y. 45, 6 Am.Rep. 31; Rubin v. Dairymen's League Co-op Ass'n, 284 N.Y. 32, 29 N.E.2d 458; Schnerb v. Caterpillar Tractor Co., 2 Cir., 43 F.2d 920; Restatement of Contracts, § 44, Illustration 1. The second count depends upon whether the plaintiff was deceived or forced to accept the contracts.

The defendant received the benefit he sought in that he was continued in the [plaintiff’s] employment [for] more than four years after the agreement was made, until he voluntarily left it. In such a situation, what is said in Willetts v. Sun Mutual Ins. Co., 45 N.Y. 45, 47 [1871], is applicable: ‘Though there be not mutual promises, yet if, before he calls for the fulfillment of the promise, the promisee do perform that, in consideration of his doing which the promise is made, there is a consideration for the agreement, and it can be enforced.’ " Roessler v. Burwell, supra, 119 Conn. at 293, 176 A. 126.

Ryan testified that he left his well-paying job at another securities firm to join Kellogg in reliance upon the managing partner's promise that his compensation package for 2003 would consist of a base salary of $175,000 and a guaranteed, non-discretionary bonus of $175,000 to be paid to him in late 2003 or early 2004. There was clearly, then, consideration for this oral employment contract, which was capable of being performed within a year. But even if Ryan had been unemployed when Kellogg hired him, his subsequent performance would have constituted consideration ( see Grossman v. Schenker, 206 N.Y. 466, 468, 100 N.E. 39 [1912] [“Even when the obligation of a unilateral promise is suspended for want of mutuality at its inception, still, upon performance by the promisee a consideration arises ‘which relates back to the making of the promise, and it becomes obligatory’ ” (quoting Willetts v. Sun Mut. Ins. Co., 45 N.Y. 45, 47 [1871] ) ] ). As a result, General Obligations Law § 5–701(a)(1) and § 5–1105 are not implicated.

( L'Amoreux v. Gould, 7 N.Y. 349, 351.) This latter type is characterized as a unilateral contract, and defined as one in which there is a promise, the consideration exacted therefor being an act rather than a promise ( De Cicco v. Schweizer, 221 N.Y. 431). The promise, though in a sense void when made for want of mutuality, becomes binding on a performance of that in consideration of which it was made. ( Willetts v. Sun Mut. Ins. Co., 45 N.Y. 45.) For example, in the case at bar, the act is an insurance plan which would solve the corporate and defendants' problem. Although this may have been a somewhat vague goal in its inception, it became quite definite and enforcible by defendants' conceded acceptance of the plan proposed (1 Williston, Contracts [3d ed.], §§ 49, 106).

ffective, being without consideration. Bassi v. Springfield Fire Marine Ins. Co., 57 Cal.App. 707, 208 P. 154; Wackerle v. Pacific Employers Ins. Co., 219 F.2d 1, 52 A.L.R. 2d 814, 349 U.S. 955, 99 L.Ed. 1279, 75 S.Ct. 884; Maryland Cas. Co. v. First Natl. Bank of Atlanta, Tex., 82 F.2d 465; Titus v. Whiteside (D.C.), 228 Fed. 965; Maine St. A.P.R. Co. v. Los Angeles Traction Co., 129 Cal. 301, 61 P. 937, 52 A.L.R. 826; Federal Life Cas. Co. v. Robinson, 28 Ala. App. 1, 178 So. 549, 235 Ala. 308, 178 So. 551; American Eagle F. Ins. Co. v. McKinnon, 36 Ariz. 409, 286 P. 183; American Building Maintenance Co. v. Indemnity Ins. Co., 214 Cal. 608, 7 P.2d 305; Isadore v. Washington Fire Marine Ins. Co. (La.), 75 So.2d 247; Fidelity Cas. Co. of N.Y. v. Calicott (La.), 75 So.2d 247; Bower Kaufman v. Bothwell, 152 Md. 392, 136 A. 892, 5 2A.L.R. 158; Rice v. Provident Life Acc. Ins. Co., 231 Mo. App. 560, 102 S.W.2d 147; Hagelin v. Commonwealth Life Ins. Co., 106 Neb. 187, 183 N.W. 103; Willetts v. Sun Mut. Ins. Co., 45 N.Y. 45, 6 Am. Rep. 31; Massachusetts Bonding Ins. Co. v. Florence (Tex.), 216 S.W. 471, 52 A.L.R. 830; 12 Am. Jur., Secs. 410, 427 pp. 988, 1004-05; 13 C.J. 592; 44 C.J.S., Sec. 281 p. 1120; Mississippi Digest, Insurance, Key 146 (3). II. The exclusionary rider given effect in the Court below was invalid for the reason that the same was squarely in conflict with the provisions of the Motor Vehicle Safety Responsibility Act (Sec. 8285-01, et seq., Mississippi Code of 1942), which provisions are read into the policy, and would preclude the application of the rider in question.

The defendant received the benefit he sought in that he was continued in the employment more than four years after the agreement was made, until he voluntarily left it. In such a situation, what is said in Willetts v. Sun Mutual Ins. Co., 45 N.Y. 45, 47, is applicable: "Though there be not mutual promises, yet if, before he calls for the fulfillment of the promise, the promisee do perform that, in consideration of his doing which the promise is made, there is a consideration for the agreement, and it can be enforced." See Wisconsin Ice Coal Co. v. Lueth, 213 Wis. 42, 250 N.W. 819; Raymond v. White, 119 Mich. 438, 78 N.W. 469. The plaintiff, having paid the defendant a weekly salary satisfactory to him, from the time when the agreement was made, and having continued the defendant in his employment until he voluntarily left, has given to the defendant the benefit for which he bargained, and has, by performance, made certain that which before was uncertain; the restrictive covenant is in itself sufficiently definite; and after the withdrawal of the defendant from the plaintiff's employment, it was founded upon an adequate consideration given.

In other words, after a contract has been performed it is too late to raise the question of uncertainty or lack of mutuality. Reynolds v. Wash-Griffith Tie and Lumber Co., 227 S.W. 438; Eaton v. Coal Co., 125 Mo. App. 194; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 151; Eldorado Ice Planing Co. v. Kinard, 131 S.W. 460; Stanley v. Sumrell, 163 S.W. 697; Boyd v. Brown, 34 S.E. 907; Willets v. Insurance Company, 45 N.Y. 45. (a) It was urged all through the trial by the appellant that the contract with these employees had to be evidenced by records of the board of directors. This is not the law.

If, however, there is a sufficient consideration mutual promises are not essential, for the consideration supports the promise although made by one party only. ( Justice v. Lang, 42 N.Y. 493. ) Even when the obligation of a unilateral promise is suspended for want of mutuality at its inception, still, upon performance by the promisee a consideration arises "which relates back to the making of the promise, and it becomes obligatory." ( Willetts v. Sun Mut. Ins. Co., 45 N.Y. 45, 47.) A contract includes not only what the parties said but also what is necessarily to be implied from what they said. ( Milliken v. Western Union Tel. Co., 110 N.Y. 403, 408.)