I dissent. The three telegrams undoubtedly constitute a sufficient note or memorandum to satisfy the policy and letter of the statute of frauds, if,taken together, they contain the. necessary elements of a contract of sale.
It is said that they do not designate the purchaser, or define the subject-matter of the sale. But I think there is abundant authority for holding that the communication of Crocker’s acceptance of the seventy-thousand-dollar offer to Breckinridge is sufficient to designate him as the purchaser; and as to the subject-matter, that is clearly defined to be the balance of the Merced town property, — i. e., Crocker’s remaining interest in the town ofMerced. . .
Whether there was any'well-known and clearly defined tract of land answering to those terms of description was a question depending—as in all such cases it must more or less depend—on evidence aliunde.
.. The evidence introduced on the. part of the plaintiff-*539in this case certainly tended to show that there was a well-defined tract of land known as the town of Merced. It is true that there was some testimony tending to show that the name was applied to two different surveys, a smaller one, and a larger one including the smaller. But this was not ground for a nonsuit, which is proper only where there is a total failure of proof on some material issue.
The most that can be said is, that there was a conflict of testimony as to whether “Town of Merced” was the name of one or two well-defined tracts of land. If the case had been tried by a jury instead of the court, it will scarcely be contended that under such circumstances a nonsuit would have been proper. It may be urged, however, that the decision of the whole matter resting with the court, the order sustaining the motion for nonsuit was the same thing in substance as a finding against the plaintiff upon one Or more material issues, and that there is evidence to sustain such finding on the point under discussion. But the trouble with this position is that there are no findings, and we cannot know that the decision of the superior court was or would have been against the plaintiff on this point. We are asked to sustain, upon conflicting evidence, a finding that has not been made, and must be implied. To do so is, in. my opinion, to initate a práctico fraught with all the mischiefs which the statutory requirement of specific findings was designed to prevent.
I think the judgment should be reversed, and cause, remanded for a new trial.
Thornton, J., concurred in above opinion óf Beatty., C. J.
Rehearing denied.