Dissenting. — I am unable to agree with my associates in the final conclusion reached in this casé. The material question involved in the trial of this case was whether or no appellant had an interest in the second contract of respondent with the Northern Pacific Eailway Company to furnish ties for the use and benefit of said company. There is no evidence that throws any light on this question, excepting the testimony of James Boche and V. W. Sander on behalf of the plaintiff (appellant), and the testimony of Charles Kalanquin (respondent). James Eoehe testifies that he is secretary and treasurer of plaintiff, and V. W. Sander testifies that he is the president of the company, which is a corporation. They both testify positively to a contract with the respondent, fixing a time and place when and where such conversation was had, and, *110if true, this was sufficient to create a contract, and enable the plaintiff (appellant) to recover in this action. The respondent testifies he had a conversation with Roche, but does not remember conversation with Sander; gives the conversation as he remembers it with Roche, but insists that no contract was made. If his statement of the conversation between himself and Roche is true, then no contract was made. There is no dispute about the time and place of the conversation between Roche and Kalanquin, and it is not urged that there was a contract, unless it grew out of that particular conversation. If Kalanquin had a conversation with either Roche or Sander, as testified to by them, he had not forgotten it at the time he testified on the trial; and this applies with equal force to the testimony of Roche and Sander. So far as we know, or as is disclosed by the record, the jury did not consider who was mistaken about the conversation, but who was telling the truth about it. They were called and sworn to pass upon this question, and did pass upon it, finding for the defendant. What right has this court to disturb this finding, when there is nothing to show bias or prejudice for or against either party to this suit? This court has repeatedly said that where there was a substantial conflict in the evidence the verdict of the jury would not be disturbed. As I read the evidence as disclosed by the record, there is a substantial conflict here. The testimony of witnesses all looks alike on paper, as we have it. It is different with the jury, the members of which have the opportunity of looking the witnesses in the face when testifying. My experience is that they are as capable of passing upon the credibility of witnesses as the members of this or any court.
It is true, as stated in the opinion of associates, “ the appellant continued' to furnish supplies and pay tie choppers for getting out ties, and the defendant made reports to and turned over vouchers to the plaintiff, the same as under the first contract, until* the final voucher, .... which he refused to turn to the plaintiff.” To my mind there is nothing unusual or strange in this. The plaintiff was selling its goods to the tie choppers, paying out its money, and receiving the vouchers as *111they came into the hands of defendant; hence had ample security in the vouchers for goods sold or money advanced. Is it not fair to assume that the plaintiff was selling its goods to the tie choppers at a profit of about twenty per cent? If so, there was twelve hundred dollars in the transaction for it, with security for the payment of its goods and money advanced. I apprehend any merchant doing business in that country would furnish 'the goods and advance the money, as was done by the plaintiff for defendant, for the profit received from the sale of goods. I think the finding of the jury that there was no contract should be final in this case, and the judgment of the lower court should be affirmed.