DONAHUE, Circuit Judge
(after stating the facts as above). No written waiver of jury appears of record; nevertheless the final decree in'the District Court recites the fact that a jury had been waived by the parties, and there is no controversy now between counsel upon that proposition. On the contrary, when we assume that the trial of this case before the District Court was in pursuance of the statutory waiver of jury, we are but assuming a fact conceded by both counsel. It therefore becomes unnecessary to determine whether the stipulations entered into by counsel on June 13th and November 2d are, in effect, a waiver. ■
[1] Where a jury has been waived, a reviewing court must accept the findings of fact made by the trial court, if sustained by any substantial evidence, as final and conclusive of the facts in controversy. R. S. § 700 (Comp. St. § 1668); Dooley v. Pease, 180 U. S. 126, 21 Sup. Ct. 329, 45 L. Ed. 457; Mayes v. Jones & Co. (C. C. A.) 270 Fed. 121. There being no other questions of law arising in the trial of this cause, this leaves for the consideration of this court in this case but two questions:
(1) Are the findings of fact made by the District Court sustained by any substantial evidence?
(2) Do the facts found support the judgment?
There is no conflict in the evidence upon which the first, second, fourth, fifth, and sixth findings of fact are predicated. There is a conflict in the evidence in reference to the third finding that there was no general custom in the coal business in 1916 to execute a formal written contract before the consummation of a binding contract for the sale of coal. There is, however, substantial evidence in this record sustaining this finding. The seventh and last finding and the one vital to this case is as follows:
“I further find that no contract was made between the parties hereto for the sale of coal by the defendant to the plaintiff as alleged by the plaintiff herein.”
[2] While the question of whether a contract has been made, where that fact is asserted by one party to the litigation and denied by the other, is, as a rule, a question of fact, to be determined upon all the evidence, nevertheless in this case the third finding of the court, that there was no general custom to execute a formal written contract in the coal business in 1916, practically eliminates all facts extrinsic to the letters and telegrams exchanged between the parties from the consideration of the court in determining this question. The District Court, recognizing that situation, found as the first conclusion of law that—
[143]*143“The correspondence referred to in paragraph 2 of the findings of fact does not constitute or inchide a binding contract between the parties, and th defendant was not obligated to sell or deliver any coal to the plaintiff.”
For the same reason the trial court also based upon its construction of these letters and telegrams its second conclusion of law, that the execution and delivery of a formal instrument embodying the terms of the contract was not intended by the parties hereto to be, and was not, a condition precedent or essential to the consummation of a binding contract between plaintiff and defendant herein.
The seventh finding of fact and the first conclusion of law are either both right or both wrong. Therefore this record does present for the consideration of this court, regardless of the seventh finding of fact, the question of whether these letters and telegrams constitute a contract, as claimed by the plaintiff, or, as claimed by the defendant, were merely negotiations looking to the execution of a formal contract as a condition precedent and essential to the consummation of a binding contract between the parties.
It is the claim of the plaintiff that defendant’s letter of August 7th and the plaintiff’s letter of August 9th constitute the contract upon which it relics for recovery, but in order to interpret correctly the meaning and effect of these letters it is necessary to consider, in connection therewith, the correspondence immediately preceding- and immediately following these two exhibits.
Defendant’s letter of August 7th does not unqualifiedly accept the terms contained in the, telegram and letter sent by plaintiff to defendant on August 7th. The letter states dial- the defendant cannot begin shipments before September 1st. Demand is also made for the name of the consignee. While there is some evidence in this record that the name of the consignee is of no importance to the seller, nevertheless, as appears by defendant’s letter of August 10th, the defendant did consider the personality of the consignee of serious importance to it, and states in no uncertain terms its reasons therefor. It is the defendant’s mental attitude upon this subject that must control in determining whether the minds of the parties met, regardless of who the consignee might be. Plaintiff’s letter of August 9th furnished to the defendant the information desired. Immediately following the receipt of this letter the defendant wrote the plaintiff the letter of August 10th, in which it stated that it could not find the F,levator Cash Coal Company, at Newcastle, Ind., listed in commercial rating hooks, and it also in this letter requested some information as to the plaintiff’s financial responsibility, for the reason, as therein stated, that—
“The line of' credit that you desire, approximating between -$800 and $900 per month, is hardly justified on your cash investment in your business, which is reported at $1,000.”
This letter also referred to past unhappy experiences with brokers in Detroit, one of'whom, defendant claims, defrauded it out of two cars of coal. The defendant also explained in this letter its further reasons for demanding this information in the following language:
“This is going to be a very trying season and prices on coal are going to be much higher than contract figures and wq want to be assured that when [144]*144we furnish coal during a period of high prices that the contract will be lived up to and the coal taken in agreed quantity when the situation changes and the market should go the other way.”
_ This demand upon tire part of the defendant was reasonable and right, especially in view of the fact, as found by the court, that this was the first business transaction between these parties, although there had been some correspondence earlier in the same year in reference to another proposed contract, which after some negotiations had been finally abandoned. These letters at best covered only the quantity and price. There was no reference in either telegrams or letters to the time of payment, strikes, car shortages, or other contingencies that might prevent or excuse the defendant from delivering this amount of coal. Therefore it is only fair to presume that, when the defendant wrote the letter of August 7th and inquired, “Will it be agreeable to have shipments begin at about September 1st and shall contract be made, dating from that period?” that defendant then contemplated and expected that'a formal contract should be made covering all of these conditions and contingencies, some of which, as appears by defendant’s first letter of August 3d, were then threatening the coal industry.
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DONAHUE, Circuit Judge
(after stating the facts as above). No written waiver of jury appears of record; nevertheless the final decree in'the District Court recites the fact that a jury had been waived by the parties, and there is no controversy now between counsel upon that proposition. On the contrary, when we assume that the trial of this case before the District Court was in pursuance of the statutory waiver of jury, we are but assuming a fact conceded by both counsel. It therefore becomes unnecessary to determine whether the stipulations entered into by counsel on June 13th and November 2d are, in effect, a waiver. ■
[1] Where a jury has been waived, a reviewing court must accept the findings of fact made by the trial court, if sustained by any substantial evidence, as final and conclusive of the facts in controversy. R. S. § 700 (Comp. St. § 1668); Dooley v. Pease, 180 U. S. 126, 21 Sup. Ct. 329, 45 L. Ed. 457; Mayes v. Jones & Co. (C. C. A.) 270 Fed. 121. There being no other questions of law arising in the trial of this cause, this leaves for the consideration of this court in this case but two questions:
(1) Are the findings of fact made by the District Court sustained by any substantial evidence?
(2) Do the facts found support the judgment?
There is no conflict in the evidence upon which the first, second, fourth, fifth, and sixth findings of fact are predicated. There is a conflict in the evidence in reference to the third finding that there was no general custom in the coal business in 1916 to execute a formal written contract before the consummation of a binding contract for the sale of coal. There is, however, substantial evidence in this record sustaining this finding. The seventh and last finding and the one vital to this case is as follows:
“I further find that no contract was made between the parties hereto for the sale of coal by the defendant to the plaintiff as alleged by the plaintiff herein.”
[2] While the question of whether a contract has been made, where that fact is asserted by one party to the litigation and denied by the other, is, as a rule, a question of fact, to be determined upon all the evidence, nevertheless in this case the third finding of the court, that there was no general custom to execute a formal written contract in the coal business in 1916, practically eliminates all facts extrinsic to the letters and telegrams exchanged between the parties from the consideration of the court in determining this question. The District Court, recognizing that situation, found as the first conclusion of law that—
[143]*143“The correspondence referred to in paragraph 2 of the findings of fact does not constitute or inchide a binding contract between the parties, and th defendant was not obligated to sell or deliver any coal to the plaintiff.”
For the same reason the trial court also based upon its construction of these letters and telegrams its second conclusion of law, that the execution and delivery of a formal instrument embodying the terms of the contract was not intended by the parties hereto to be, and was not, a condition precedent or essential to the consummation of a binding contract between plaintiff and defendant herein.
The seventh finding of fact and the first conclusion of law are either both right or both wrong. Therefore this record does present for the consideration of this court, regardless of the seventh finding of fact, the question of whether these letters and telegrams constitute a contract, as claimed by the plaintiff, or, as claimed by the defendant, were merely negotiations looking to the execution of a formal contract as a condition precedent and essential to the consummation of a binding contract between the parties.
It is the claim of the plaintiff that defendant’s letter of August 7th and the plaintiff’s letter of August 9th constitute the contract upon which it relics for recovery, but in order to interpret correctly the meaning and effect of these letters it is necessary to consider, in connection therewith, the correspondence immediately preceding- and immediately following these two exhibits.
Defendant’s letter of August 7th does not unqualifiedly accept the terms contained in the, telegram and letter sent by plaintiff to defendant on August 7th. The letter states dial- the defendant cannot begin shipments before September 1st. Demand is also made for the name of the consignee. While there is some evidence in this record that the name of the consignee is of no importance to the seller, nevertheless, as appears by defendant’s letter of August 10th, the defendant did consider the personality of the consignee of serious importance to it, and states in no uncertain terms its reasons therefor. It is the defendant’s mental attitude upon this subject that must control in determining whether the minds of the parties met, regardless of who the consignee might be. Plaintiff’s letter of August 9th furnished to the defendant the information desired. Immediately following the receipt of this letter the defendant wrote the plaintiff the letter of August 10th, in which it stated that it could not find the F,levator Cash Coal Company, at Newcastle, Ind., listed in commercial rating hooks, and it also in this letter requested some information as to the plaintiff’s financial responsibility, for the reason, as therein stated, that—
“The line of' credit that you desire, approximating between -$800 and $900 per month, is hardly justified on your cash investment in your business, which is reported at $1,000.”
This letter also referred to past unhappy experiences with brokers in Detroit, one of'whom, defendant claims, defrauded it out of two cars of coal. The defendant also explained in this letter its further reasons for demanding this information in the following language:
“This is going to be a very trying season and prices on coal are going to be much higher than contract figures and wq want to be assured that when [144]*144we furnish coal during a period of high prices that the contract will be lived up to and the coal taken in agreed quantity when the situation changes and the market should go the other way.”
_ This demand upon tire part of the defendant was reasonable and right, especially in view of the fact, as found by the court, that this was the first business transaction between these parties, although there had been some correspondence earlier in the same year in reference to another proposed contract, which after some negotiations had been finally abandoned. These letters at best covered only the quantity and price. There was no reference in either telegrams or letters to the time of payment, strikes, car shortages, or other contingencies that might prevent or excuse the defendant from delivering this amount of coal. Therefore it is only fair to presume that, when the defendant wrote the letter of August 7th and inquired, “Will it be agreeable to have shipments begin at about September 1st and shall contract be made, dating from that period?” that defendant then contemplated and expected that'a formal contract should be made covering all of these conditions and contingencies, some of which, as appears by defendant’s first letter of August 3d, were then threatening the coal industry. That the plaintiff so understood this would appear from its letter of August 9th, in reply to defendant’s letter of August 9th, in which he said:
“You may date the contract either the date you make it up or the date of our wire—August 7th.”
The conclusion to be drawn from these two letters as to the intention of the parties to execute a formal contract is fully supported by practically all the other correspondence in this case. • Plaintiff’s first telegram to the Wisconsin Steel Company asked for price of screenings upon yearly contract. Defendant’s letter in reply to this telegram of August 3d reads, in part:
“We expect to have about five cars of two-inch nut and slack per week that we may offer on a contract to extend for one or two years at a price of 90 cents per net ton mines.”
Plaintiff’s letter of August 7th, in reply to plaintiff’s letter of August 3d, concluded with this statement:
“Please draw up a form of contract and send to us for signature.”
Plaintiff’s letter of August 11th concludes with this statem'ent:
“Trusting we may be favored with your contract blanks by return mail.”
It would therefore appear from all of this correspondence, without any conflict or dispute in any particular whatever, that it was the intention and. purpose of both parties to this transaction to execute a formal written contract covering all the matters and things usual in contracts of this character, such as time of payment, car shortages, strikes, and the like, which contract the defendant did not intend to make until he had fully investigated the'standing and c'haracter of the consignee and the financial responsibility of the plaintiff.
[3] It is claimed on behalf of the plaintiff in error that, where a contract does not provide in terms for delay in payment, the presumption obtains that cash payment is intended. Undoubtedly this rule would [145]*145apply to a contract for the sale and delivery of a single article or a number of articles at the same time, but such a presumption would hardly obtain in reference to a contract providing for five separate deliveries each week for one year. However that may be, it is clear that neither of these parties contemplated payment in cash for each carload of coal at the time of its delivery. In its letter of August 10th, the defendant stated that the plaintiff would require a line of credit between $800 and $900 per month, which the defendant thought not justified by plaintiff’s cash investment of $1,600 in his business. The plaintiff’s reply to that letter did not deny that he desired and expected this amount of credit each month. On the contrary, he inclosed a financial statement that is usually made by dealers when credit is desired. In this letter plaintiff also gave the names of coal dealers in Buffalo, N. Y., Pittsburgh, Pa., Cincinnati and Columbus, Ohio, and Chicago, 111., as references to his financial responsibility. He also stated that the Elevator Cash Coal Company was absolutely financially responsible and referred the defendant to Dun or Bradstreet. This letter of the plaintiff would seem to be conclusive of the fact that he expected a monthly credit in the amount stated in the defendant’s letter of August 10th. These letters are sufficient to show that neither of these parties then understood that a contract had been consummated between them by the letters of August 7th and August 9th, but, on the contrary, that there was still something further to be done, not only in reference to time of payment, but also to satisfy the defendant that it could safehr extend this credit. It was for the defendant, acting in good faith, to say, after the receipt of this letter and financial statement, whether or not it was satisfied therewith.
[4] Eor the reasons above stated the seventh finding of fact made by the District Court is sustained by substantial evidence, and it necessarily follows that the court did not err in its first conclusion of law construing the effect of these telegrams and letters.
The judgment of the District Court is affirmed.