(dissenting).
I respectfully dissent, for the following reasons:
The only issue here is whether factually there was an enforceable oral contract be*197tween Ewell and the railroads, — the whole thrust of which is that silence here was not golden, but an acceptance of some kind of an offer made by Ewell, resulting in a contract. At best, testimony anent thereto was rather obfuscatory and not of the type required in such cases, as will be demonstrated. None who testified thereto was particeps to such an alleged contract which he simply thought to be such, save Ewell, whose testimony, so far as admissibility of evidence is concerned, was the sole basis for the jury’s finding that an enforceable contract existed.
The main opinion, at some length, recites the facts that the City notified the railroads that they would have to protect the underpinning of their tracks, since the City would not be responsible to Ewell for expenses incident to the presence of the tracks, and that this admonition was orally reiterated by employees of the City, not parties, hut only bystanders. I agree heartily with the comment volunteered in the main opinion that “It is admittedly somewhat strange that whatever transpired at the meeting was not redziced to writing.” It is even stranger that the only clear agreement entered into between Ewell and the railroads that could be said was binding, was that between him and the D & RG with respect to the specifications for “jacking and tunneling,” which zms in writing. The main opinion then says that “nevertheless, it is of importance in this case because it (whatever transpired at the meeting, all of which was oral) forms the foundation for the claims upon which the plaintiff brought this suit.” It is submitted that nothing said or done, as related above in the forepart of this paragraph, has one whit to do with any contract between Ewell and the railroads.
In the next paragraph of the opinion it states that the “euphoric fallacy” of the losers (the railroads here), in stating facts favorable to their position invokes the rule that we survey the evidence in a light favorable to the verdict. There is no euphony of logic though, when the main opinion, euphoric or not, implies that because of such approach the railroads must have contracted with Ewell, and that there must have been a contract although the facts so viewed did not come close to a contract under traditional principles relating to that subject.
The next paragraph in the main opinion recites that Ewell discussed with the City and railroad engineers the costs of alternate methods of laying the pipe, in which the main opinion concedes, by its language, that “It is not shown that the defendants either expressly objected to or accepted that proposal.” This paragraph of the opinion seems to indicate that there was no meeting of the minds, or manifestation of mu*198tual assent existing between the parties, and it is just as consistent that defendants objected as it is that they accepted anything, and any silence born of such lack of evidence hardly could be used to transmute an acorn into an oak tree.
The next part of the main opinion having to do with a possible contract between Ewell and the railroads contains the rather startling suggestion that in the conversation between the City and railroad engineers where Ewell gave some figures concerning additional costs, the fact that the railroads’ engineers said nothing, knowing that Ewell was going ahead “with the project,” which he zvas hound to do anyway under its contract with the City, — the jury could have found that their failure to say anything resulted in a contract. To say that a contract that must be established by at least some substantial and clear evidence was established by such type of proof based on such nebulous and flatulent evidence as adduced and recanted in the main opinion is not only provocative of flight from the simplest elementary principles of contract, but draws the shades on Williston and Corbin. It is obvious that such tenuous evidence bound no one, and the jury should not have been allowed to speculate on it.
The main opinion sanctions a statement in the conversation made by the city engineer, that “he understood the railroads and Ewell to have an understanding or that they soon would have’’ in support of the decision here affirming a contract. The justification for the admissibility of such cloud-nine testimony was that, though a borderline question (which obviously it was not), the engineer was a professional man, interested in the subject matter, and subject to cross-examination, all of which was within the discretion of the trial court, and which this court thinks wasn’t very prejudicial anyway, seems to be a non sequitur so naive as to disembowel the corpus evi-dentia. This erroneous permissiveness on the part of the trial court is like permitting the fans in the right field bleachers to call the balls and strikes at home plate. The main opinion fails to reveal that not only was the city engineer allowed to testify that he thought a couple of other people executed a contract, — (particularly where one of them participated therein in deathless silence) and in obvious usurpation of the prerogatives of another profession not his own, but permitted others, in gross, equally to demonstrate their expertise as to the elements requisite to create a contract, — thus compounding the error of the trial court. It appears that the main opinion partakes of the hors d’oeuvres of this case but fails to jawbone the meat of it. It is no answer to say, as does the main opinion, that Ewell had a right to believe an engineer for one *199of the railroads which could bind the latter by silence, especially when Ewell’s own evidence is based on what a batch of strangers thought was a contract, epitomized by one’s less than clear gem to the effect that he “understood that the parties had an understanding or that they soon tvould have.” Such evidence may not only lead to silence but to an aberration reflecting incompetency to contract. Furthermore, the concessions made by Ewell in his own testimony militates against the existence of a contract. When he was asked about the railroads’ representatives’ participation in the talkfest, he said that none of them agreed to pay him any money for the footage expense extra in the tunneling process. It is axiomatic that a litigant’s chain of testimony is no stronger than its weakest link, and it is no answer to say this positive evidence given by Ewell himself can be substituted by the silence of his adversary.
The balance of the main opinion has to do with matters other than the facts necessary to justify a finding of a parol contract based almost solely on parol evidence. It is submitted that the facts recited in the main opinion itself, together with the concessions of Ewell, will not support a contract based on either actual or ostensible authority and that it was reflected by nothing positive, but only by the conjecture that silence breathed life into that which was either not as yet conceived or unenforce-ably stillborn.
CALLISTER, C. J., concurs in the dissenting opinion of HENRIOD, J.