Pittsburgh, C., C. & St. L. Ry. Co. v. Racer

• Decision Date: 20 September 1894
• Citation: 38 N.E. 186,10 Ind.App. 503
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. RACER et al.

10 Ind.App. 503

38 N.E. 186

PITTSBURGH, C., C. & ST. L. RY. CO.

v.RACER et al.

Appellate Court of Indiana.

Sept. 20, 1894.

On rehearing. Denied.

For original opinion, see 37 N. E. 280.

GAVIN, J.

Appellant's counsel have filed a petition for a rehearing, in which several matters are adverted to. In it, however, they say: “There remains, therefore, but one question for this court to consider,-did appellant contract to furnish appellees cars on the 30th day of August, 1890? If it did, the judgment was rightly confirmed. If it did not, the judgment should be reversed.” This is clearly recognized in the original opinion as the vital question in the case. The Honorable Joseph S. Dailey (now one of the judges of the supreme court) heard the evidence in this cause upon its trial, and found that the appellant did agree to furnish the cars at the time specified. After a careful consideration of all the evidence, this court concluded that the finding was fairly sustained by the evidence. The petition for rehearing, however, which purports to have been prepared by “G. E. Ross,” asserts in most positive and emphatic manner that this finding is “ false.” The emphasis is his own. We have, therefore, again examined the evidence, and find that, while counsel set out parts of the evidence relating to this subject, as to which they explicitly state, “and this was all the evidence on that subject,” they have, by some strange oversight, omitted the following evidence by Thomas H. Racer, one of the plaintiffs: “A. I went up north of here six or seven miles, and bought a lot of cattle, Thursday, the 28th, and then I came here to receive stock, Friday morning, I think, but I won't be positive, and told him I wanted cars to ship Saturday. Q. Told whom? A. Mr. Robbins; Herman Robbins, the station agent. This was on Friday morning, August 29th. Q. What reply did he make to that? A. He said, ‘All right’ Q. He made the order? A. Yes, sir; through Dunkirk.” Here is clearly evidence sufficient, notwithstanding the emphatic denial of counsel, upon which to base the finding of the trial court. Appellant thereby indicated its acceptance of the order, and became bound to fill it, under the express holding of this court in its former decision. When the minds of the parties meet as to the terms of a contract, and this unison of intention has been expressed, the contract is made. When words of assent are relied upon as showing the meeting of minds, it is of little...