(dissenting) — As I read the record, the appellant is entitled to a judgment of dismissal as upon an executed contract by the Scandinavian American Bank of Tacoma to pay the sum of $1,185.95; or there was no contract for the reason that the minds of the parties never met. I have gone through the record in this case, and I find nothing that in my judgment warrants the conclusion of the court below, and of the majority, that the appellant represented and warranted to the respondents that the balance due and owing upon the conditional sale contract was $1,185.95, or that any proof was suppressed or falsehood suggested. In fact, all of the concomitant circumstances makes it plain to me that the parties must have contracted with reference to the whole amount due from the machinery company to the appellant. Without discussing the testimony at length, it is enough to say that appellant had a conditional sale contract for the machinery; that there was a balance due of $681.55, and that the machinery company was owing $504.40 upon an open account. Appellant had a legal right to *604take the machinery without reference to the amount of the balance due. The machinery exceeded in value the sum of $1,185.95. There is direct evidence to sustain this conclusion, and the fact that respondent was willing to pay that amount makes it incontrovertible. It is highly improbable that appellant would deliberately release a hold that it had upon the property, and which, if exercised, would have more than paid its whole debt, and content itself with the loss of half the amount which was its due. The assignment of the conditional sale contract, with the amounts and dates of the payments due, was, in the absence of anything else, sufficient to put respondent upon inquiry. The insertion of the words “which is guaranteed the balance due from the above mentioned company,” after the typewritten body of the contract which contained the recitals “for and in consideration of the sum of $1,185.95, we hereby sell, etc., all our right, title and interest in and to one pair 17x22 inch, Class EE Atlas Engine, etc., together with our right, etc., in a certain conditional sale contract,” is enough to bind the respondent. The parties used the figures $1,185.95 without qualification. The words guaranteeing that sum to be the balance due, without reference to the amount due upon the conditional sale contract, indicates to my mind that the parties had a perfect understanding at the time that the respondent was willing to and did pay the sum of $1,185.95 for the engine, with the expectation and intent of making a profit to itself over and above that sum, and that it would not have paid that amount if it had not considered it to be a profitable venture. Moreover, if the parties had contemplated a transfer of the conditional sale contract for the amount due thereon, a simple assignment of it would have been enough without making a formal bill of sale of the engine. Upon its findings of fact, the court below, as well as the majority, have convicted the representatives of the appellant, whose only offense has been to give up nearly $1,-200 worth of property for about $600, of being knaves. If *605they did what the majority say they did, they were not knaves. They lack the understanding and cunning of knaves •and should be classed as fools.
Respondent has not only failed to make out a case of fraud by the clear and convincing evidence required by the law, but it has failed, in my judgment, to make a case at all. I am inclined to believe, and it is the more reasonable theory, that both parties acted in good faith. The bank may have thought it was purchasing the engine for the amount due upon it. It is certain to my mind that appellant never intended to sell upon those terms. A proper holding would be that the minds of the parties never met, and that the transaction lacks this essential element of a contract.