Decided October 1, 1912.
On Petition for Rehearing.
(126 Pac. 603.)
Mr. Justice Mooredelivered the opinion of the court.
A petition for a rehearing criticises a statement found in the' former opinion, to the effect that the errors relied upon for a reversal of the judgment related to the conclusions of law, and that there was no controversy respecting the findings of fact. It is contended that such declaration is incorrect, and that the entire dispute in this court related to the findings of fact, in support of which no legal evidence was offered.
7. The abstract sets forth what was supposed only to be a general summary of the findings of fact, not one of which is quoted as such. Attached to the bill of *50exceptions is a stipulation, signed by the attorneys for the respective parties, in substance that the matters detailed therein should stand in lieu of the facts. The matters thus referred to consist of copies of telegrams, letters, forms of contracts, etc., apparently including everything that was considered material. This agreed statement of facts was incorporated in the bill of exceptions, and thus became a part of the judgment roll, whereby the recital constitutes the findings of fact properly involved. Frush v. East Portland, 6 Or. 281; Moody v. Richards, 29 Or. 282 (45 Pac. 777). No findings of fact by the trial court were necessary, and the chief inquiry presented by the appeal is the conclusion of law whether or not a contract was consummated by the exchange of telegrams. The part of the former opinion adverted to was believed to be true when first expressed, and a careful re-examination of the matter has not changed the original view in that particular.
8. It is maintained that the undisputed facts of the case show negotiations only which cannot be construed into a complete contract; and, this being so, the judgment should have been reversed. The apparent mutual assent of the parties, which is essential to the formation of a valid agreement, is to be gathered from the language that they have employed. Thus a text-writer, in discussing this subject and referring to the case of Raffles v. Wichelhaus, 2 H. & C. 906, says:
“The defendant agreed to buy, and the plaintiff agreed to sell, a cargo of cotton, ‘to arrive ex Peerless from Bombay.’ There were two such vessels sailing from Bombay, one in October; the other in December. The plaintiff meant the latter, the defendant the former. It was held that the defendant was not bound to accept the cotton. It is commonly said that such a contract is void, because of mutual mistake as to the subject-matter, and because, therefore, the parties did not consent to the same thing. But this way of putting it seems to be misleading. The law has nothing to do with the actual state *51of the parties’ minds. In contract, as elsewhere, it must go by externals, and judge parties by their conduct. If there had been but one ‘Peerless,’ and the defendant had said ‘Peerless’ by mistake, meaning ‘Peri,’ he would have been bound.” Holmes’ Com. Law, 309.
In the case at bar, the defendant telegraphed brokers in New York City to sell for him a particular variety of dried prunes at a specified price. These agents wired back that R. C. Williams, the plaintiffs, would pay a less sum for a carload lot of inferior quality of such fruit. Upon receipt of the latter message, the defendant again telegraphed the brokers, as follows: “Accept Williams mailing contract hold thirties firm three three-eighths.” The “thirties” thus referred to are a better quality of dried prunes than the sort which the plaintiffs offered to buy; and the term “mailing contract,” used in the message, may as well have applied to the “thirties” which were to be sold as to any other quality. Since it appears from the language employed in the telegram quoted that no positive conditions were attached to the defendant’s declaration to the agents to assent to the bid, the negotiations terminated with such message, which contained an unqualified acceptance of the plaintiffs’ offer.
9. It is argued that the case of Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209 (39 N. E. 75: 29 L. R. A. 431: 43 Am. St. Rep. 757), cited in the former opinion, has no application to the facts involved herein, because in that casé it is conceded that a contract was consummated without any further written evidence thereof. The legal principle asserted in that case, elucidated by the notes thereto, was considered controlling only to the extent of the converse rule noted, that, though the parties may have reached an understanding respecting a contract, yet, if it appeared that a formal writing should be executed before they were to be bound, the intention governed. Bourne v. Shapleigh, 9 Mo. App. 64. Since, however, in the case at bar no such intention was mani*52fested, the contract was effected by the defendant’s direction- to the brokers to accept the plaintiffs’ offer.
We adhere to the former opinion and the petition is denied. Affirmed: Rehearing Denied.