delivered the opinion of the court.
It appears from the bill of exceptions that the defendant is a corporation, engaged in buying and selling dried fruits, its office being in Portland, Oregon, from which city it sent a telegram, June 13, 1910, to M. W. Houck & Bro., commission merchants at 189 Franklin street, New York, and, referring in the message to such edible fruit then growing in Oregon, stated in part: “Offer one straight car fine large thirties October shipment at three and half base.” The next day these brokers, alluding to plaintiffs, wired the defendant in part as follows: “As per your message R. C. Williams offers f. o. b. three and one-fourth car thirty-forty twenty extra.” Replying to this message on the same day, the defendant telegraphed the brokers: “Accept Williams mailing contract hold thirties firm three three-eighths.” At the same time the defendant wrote the brokers a letter, from which an excerpt is taken, viz.:
“In accordance with the wires exchanged by us today we enclose you a contract for R. C. Williams & Co. We signed the yellow one for the buyer and please have them sign the blue one for us and return it promptly. We hardly know how we came to sell this car so cheap, as there is no profit in it for us. We did business with Mr. Williams last year, and wanted to hold their trade, but we do not care to sell any more cars of 30-40s, unless we get 3% cents, bulk base.”
Accompanying this letter was the draft for a formal contract containing various specifications. The defendant, on July 1, 1910, wrote Houck & Bro. in part as follows :
“We have not received the contract we sent you for R. C. Williams & Co. Please let us know if he accepts or objects, so that we will be in position to sell the car in case he does not accept.”
After the exchange of several letters in which references were made to the forms of dried fruit contracts *45adopted by the respective parties, and the refusal of each to sign the contract prepared by the other, the plaintiffs, on August 8, 1910, wrote the defendant, saying in part:
“As far as the contract goes, we have got all the contract we want. We have copy of your telegram. We have copy of telegram to you, and we have got the acceptance of car load of 30-40 prunes. * * You have sold us a car of 30-40 prunes. Ship same along; we will pay you for them and there will be absolutely no trouble.”
The defendant finally wrote the plaintiffs, say big in part:
“Your refusal to sign our contract closed the intended sale on our part, and as there is no contract we will ship you no prunes.”
The chief inquiry to be considered on this appeal is whether or not the defendant’s telegram of June 14, 1910, to Houck & Bro., in response to their message of the plaintiffs’ offer, evidenced a meeting of the minds of the parties and effected a contract. The defendant’s counsel maintain that the message contained a qualified acceptance of the bid, and proposed a formal draft evidencing the agreement, but, the overture having been declined by plaintiffs, an error was committed in rendering a judgment in their favor. The error alleged relates to the conclusion of law, which, it is argued, is not deducible from the finding of facts as made by the trial court, in respect to which there is no controversy.
1. It was stated at the trial of this appeal that dried Oregon prunes are graded by machinery, and that the term “fine large thirties,” referred to in the defendant’s telegram of June 13, 1910, means such a variety of desiccated fruit that 30, or less, weigh a pound,- and that the market value increases with and depends upon the size of the prunes. The “thirty-forty” assortment, mentioned in the broker’s message, is not so large as “thirties,” and for that reason it is less valuable in the market than the *46latter. The offer of R. C. Williams & Co., as detailed in the broker’s telegram of June 14, 1910, specified the name of the proposed purchasers, the price they were to pay, the quantity and the quality of the dried prunes desired, which were to be placed, without expense to them, on a car ready for shipment. In response to such offer, it will be remembered that the defendant wired Houck & Bro. as follows: “Accept Williams mailing contract hold thirties firm three three-eighths.” This telegram having referred to “thirties,” while the offer to purchase related to 30-40s, it will be seen that the message, last quoted, alluded to a quality of dried prunes not embraced in such offer. Whether the “mailing contract” referred to in the defendant’s telegram related to “thirties” or to “30-40s” cannot be determined from an inspection of the message. Any doubt on that subject, however, was resolved when the letter accompanying- the contract reached New York by mail several days after the receipt of the defendant’s telegram.
2, 3. The offer to purchase having been made by wire, it may reasonably be assumed that an answer was invited by that means of communication. Clark, Cont. (2 ed.) 26. If the parties intended to effect an agreement, it was consummated June 14, 1910, when the defendant telegraphed the brokers to accept the offer they had received. Bishop, Cont. (2 enlarged ed.) § 328. Had the message directed an assent to the bid, provided the plaintiffs’ firm name was appended to the contract sent by mail, the supposed condition would necessarily have prolonged the negotiations and constituted a new proposal, which would not have been effective until complied with. Bishop, Cont. (2 enlarged ed.) § 323. When the evidence tending to establish an agreement consists of telegrams or letters sent to and received by the respective parties, their entire correspondence on the subject, pending the negotiations, affords the means of determining whether or not they *47intended to effect a contract before signing a writing expressing its terms.
4. Based on this rule, it is contended that the defendant’s telegram and letter, having been written at the same time, should be construed together. In order to protect the rights of a party who has, by letter or telegram, signified his acceptance of an offer, the means of transmitting the assent is held to be the representative of the other party, so that when the letter or message, properly addressed, with charges or postage prepaid, is delivered to the agent, so as to entitle it to be sent forward, the minds of the contracting parties have met, and an agreement is effected. 7 Am. & Eng. Enc. Law (2 ed.) 135; 9 Cyc. 295; Tayloe v. Merchants’ Fire Insurance Co., 9 How. 390 (13 L. Ed. 187).
5. Where the United States Postoffice Department and a telegraph company are thus treated as the agents of the party making the offer, f#ir dealing demands that, unless a telegram expressly refers to a contemporaneously written letter for further details, or by way of explanation, so as necessarily to impart notice and to require a delivery of the letter before the party to whom it is addressed can Íafely act upon the telegram, the message and the letter hould not be construed in pari materia. Any other rule right impose damages upon the party receiving a telegram containing an unqualified acceptance of an offer for relying upon the information thus obtained, since by doing so he might incur obligations to other parties in [respect to the subject-matter of the contract that would be burdensome; or, if he could not act upon the telegram until sufficient time had elapsed to enable the delivery of the letter qualifying the acceptance stated in the telegram, needless delay in the transaction of business would inevitably ensue. In the case at bar, the telegram did not make such express reference to the letter as necessarily to constitute the latter a part of the former, or *48to impart notice. No error was committed by the tria] court in refusing to interpret the telegram and the letter as parts of the same affair.
Prior to the receipt of the defendant’s telegram of acceptance, the plaintiffs in their negotiations to purchase prunes had not alluded to the execution of a formal writing to evidence an executory agreement. Thereafter each party insisted, without avail, that the form of contract respectively submitted should be subscribed by the other party, until August 8, 1910, when, it will be kept in mind, the plaintiffs, referring to the telegrams that had been exchanged, wrote the defendant:
“We have got all the contract we want. * * You have sold us a car of 30-40 prunes. Ship same along; we will pay for them and there will be absolutely no trouble.”
In stating the rule for determining the intent and the legal mode of expressing it, whereby the terms of an agreement have been assented to, a text-writer observes:
“Where the parties make the reduction of the agreement to writing and its signature by them a condition precedent to its completion, it will not be a contract until that is done, and this is true although all the terms of the contract have been agreed upon. But, where the parties have assented to all the terms of the .contract, the mere reference to a future contract in writing will not negative the existence of a present contract.” 7 Am. & Eng. Enc. Law (2 ed.)' 40.
In Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209 (39 N. E. 75: 29 L. R. A. 431: 43 Am. St. Rep. 757), it was determined that letters and telegrams constituting an offer and acceptance of a proposition, complete in its terms, might create a binding contract, although there was an understanding that the agreement should be expressed in a formal writing, and one of the parties afterwards refused to sign such an agreement without material modifications. The legal' principle thus announced, illustrated, as it is, by the notes to that case, *49is adopted as controlling herein, without adverting to or commenting upon the many cases cited by defendant’s counsel in their able and exhaustive briefs.
In the case at bar, neither party was obliged to assent to the terms of the formal, written contract desired by the other party; but after the negotiations terminated each was bound by the offer and its unqualified acceptance.
6. Error is assigned in the admission, over objection and exception, of evidence, which, it is asserted, was incompetent. In an action tried by a court without a jury, the receipt of incompetent evidence, properly excepted to, is not prejudicial, unless injury has necessarily resulted. Taffe v. Smyth, 62 Or. 227 (125 Pac. 308).
Believing that such consequences did not follow, and that a fair trial was had, the judgment should be affirmed; and' it is so ordered. Affirmed.