The complaint alleges that on February 28th, 1901, the defendant signed a written agreement, not under seal, in words and figures as follows: "We agree to sell S. A. Alderman our steel turnings for the season of 1901 for $6 per gross ton, at factory." It does not allege delivery, except as delivery is implied in execution. Assuming that delivery is inferentially alleged, then the complaint alleges that the defendant signed and delivered to the plaintiff the writing described. The court finds this allegation true: "The defendant . . . signed and delivered to the plaintiff and the plaintiff accepted a writing offered in evidence," being the one mentioned in the complaint. The complaint then alleges that on two occasions, first in April, and second in May, 1901, the defendant had in its possession steel turnings, and the plaintiff at the factory tendered the price of these turnings and demanded delivery, which was refused by the defendant, to the damage of the plaintiff. These demands are stated separately under "first count" and "second count."
It is evident that these refusals gave the plaintiff no cause of action against the defendant, unless there was a valid consideration for the promise stated in the writing, or the plaintiff agreed on his part to purchase the steel turnings at the price and place and within the time mentioned, before the promise to sell should be withdrawn. No consideration for the writing and no agreement on the part of the plaintiff is alleged. The mere production of the writing in evidence does not prove either a consideration or a promise to purchase. It does not appear from the findings of the court that any consideration was proved, or that any promise on the part of the plaintiff to purchase was proved, unless proof must be inferred from the detail of evidential matters of doubtful import, or is established by proof of the mere signing, delivery, and acceptance, of the writing.
Upon this state of the pleadings and proof, the defendant in argument claimed as a matter of law, and asked the court to rule, "that the writing set forth in the complaint . . . did not constitute a contract," but was a mere promise, without *Page 521 consideration, to sell, subject to withdrawal by the defendant at any time before the plaintiff had acted upon it by making a reciprocal promise to purchase; and urged that, applying this law to the evidence, it was clear that the offer to sell had been withdrawn before the plaintiff had acted upon it, and no contract of sale had been proved.
The court unqualifiedly overruled this claim of law, refused to rule as requested, and rendered judgment that rests upon a conclusion by the court that a valid contract of sale had been proved.
We think the patent error of the court in respect to the interpretation of the writing must have influenced, if it did not altogether control, its conclusion that a valid contract had been proved, and therefore vitiates the judgment based on this conclusion. For this reason the judgment must be set aside.
The defendant also claims that the only legal conclusion from the subordinate facts as found by the court is, that the plaintiff has failed to prove a valid contract of sale. If this were so, the judgment should be reversed with instructions to the trial court to render judgment for the defendant. This might be a more satisfactory disposition of the case, but the claim of the defendant, while not without plausible support from the record, meets an insuperable difficulty in the peculiarities of the court's findings. In the memorandum filed, specially setting forth the facts on which the judgment is based, as well as in the finding for appeal, the statement of facts found is so interwoven with statements of evidence and of the mental processes of the court, that the ascertainment of all the material facts actually found depends to some extent on doubtful inferences. No necessary legal conclusion from facts found by the court can be affirmed, unless those facts are stated in the record with reasonable certainty.
There is error, the judgment of the City Court is set aside and the cause remanded for further proceedings according to law.
In this opinion the other judges concurred.