and myself are unable to concur in the judgment of the court in this case. When the directors of the Railroad Company came to consider, as a Board, the transaction betweén Murchie and Wheeler & Co., they took it up, as their resolution states, as a sale by Murchie to Wheeler & Co., and confirmed it on behalf of the Railroad Company, as a sale of tons of 2,000 lbs. When Wheeler & Co. received Murchie’s letter enclosing a copy of the resolution of the Board, their letter of reply of February 28, 1880, states their understanding to be, that the sale was not made subject to approval by the Railroad Company, and that the ton was 2,240-lbs., and that they look for the delivery of the rails in gross and not net tons. But the resolution of the Board expressed the contrary view, as to the ton; and so the letter proceeds to say, that Wheeler & Co. make no doubt that Murchie’s understanding of the contract, as he had made it, is in accord with that of Wheeler & Co., and that, in so far as the resolution of the Board fixed 2,000 pounds for each ton, it did so by an oversight on the part of the directors. This was a plain appeal to Murchie, to bring his understanding of the contract to bear on the directors, to induce them to change their view and their statement of the contract, in respect of *39the tons; and' it was followed up. by the closing words of the letter: “We hope to hear from you at your, earliest convenience.” The whole tenor of this letter was to throw the matter into the- field of negotiation and arrangement, where the Railroad Company asked to have it. put. That Company plainly said to Wheeler & Co,-: “ If you regard the ton in this contract as a gross ton, we do not; and, if you do, we do not think -there is any contract.” Wheeler & Co. replied: “ We do, and we think such was-Mr. Murchie’s view at the time, and that your directora have committed an oversight in' their resolution which ‘ fixes ’ the to,n at 2,000 pounds; but, in, view of all this,1 we ask to hear from you at your early convenience about it.” .At that date old rails were $33.50 to $34 a ton of 2,240. pounds, Without duty.- The contract price was $30' and. $28, without duty. The contract was a good one for Wheeler & Co., if they could then sell the rails, for future delivery, at the market rate of that daté, and if the tons of the contract were 2,240 pounds. So, it was important for them to know whether the -Railroad Company would adhere to the view stated in the resolution or would recede from it; and they sought to learn. Rut they received no reply from- Murchie or his Company. They had a right to take the Company at its word and to act on its solemnly announced understanding of the ■ contract. They'did so and refrained-from turning the contract ’ to any benefit by a re-sale of the rails. . They were ■ dealers in rails and bought only to re-sell. They did not buy to use otherwise. . This the Railroad Company and Mürchie knew.
' Now, what is the finding of, the Circuit Court? It is, that Mürchie in fact understood that the tons of the contract were 2,240 pounds, as did Wheeler & Co.; that the Company* while; mot misunderstanding, intended to induce Wheeler & Co. to■ think it misunderstood, for the purpose of having Wheeler & Co. ¡agreó that the tons should be 2,000 pounds; that this conduct was “ disingenuous; ” -and that the natural effect of a failure to reply to Wheeler. & Co.’s -letter was to create “ great uncertainty”-on the'part of Wheeler A Co., and "to cause “ annoyance and pecuniary loss” to them.- -On- these facts,'it is held, *40that, when the market price of the rails has fallen to one-half of the contract price, the Company can insist on compelling Wheeler & Co. to take the rails at the contract price, because the Company then chooses to turn around and say: “ The ton was and is 2,240 pounds. We were wrong all the time, and you were right; and we now reply to your letter, by saying that we did commit an ‘oversight’ in our resolution, as you suggested.”
We can sanction no such view of the rights of the parties to a commercial transaction. The company made statements, in its resolution and letter, which the Circuit Court finds were not true, as to its understanding regarding the ton; and which that court finds it knew were not true; and which that court finds' -it intended should be regarded by Wheeler & Co. as honestly made; and which it is clear it intended Wheeler & Co, should act upon; and -which they did act upon to their injury. The actual groundmf recovery by the company in this case is based on proof of the untruth of the assertions made by the company, followed by the proposition that Wheeler & Co. had no right to believe and rely on those assertions. Every element exists to estop the company from denying the truth of those assertions, and from insisting that Wheeler & Co. should not have relied on them. There is not a suggestion impeaching the good faith and fair dealing of Wheeler & Co. They were not guilty of any deceit or misrepresentation; they held out no false light; they did not attempt to procure an advantage by an untrue statement of their understanding of the contract.; they did. not mislead the other party to his injury. Their letter to TVIurchie of February 28 was a model-of mercantile candor and fair dealing. It demanded a reply. The absence of a reply was no ground for supposing that the company had abandoned the position it took in the resolution, for Wheeler & Co. did not then know, what they learned afterwards, that the. resolution was a sham and a fals¿ pretence.
The conclusion seems to us to follow inevitably, under the findings of the Circuit Court, that the company had lost its right- "to recover on the-1 contract; and we, therefore, dissent from the judgment-'of .affirmance.