Appeal from Second Judicial District Court, Washoe County; John S. Orr, Judge.
Mack & Green, for Appellant.
Summerfield & Curler and Summerfield & Richards, for Respondent.
By the Court, McCarran, J. (after stating the facts):
 There can be no serious attempt to deny the existence of a contract between the parties to this action. The terms of the contract may be found in the several letters set forth in the statement of facts, and especially in the letter from appellant to respondent dated December 6, and from respondent to appellant December 24, and from appellant to respondent December 27, and from respondent to appellant January 7, 1907. This
contractual relation established by these respective communications was manifested by the letter of April 24 from appellant to respondent, in reply to which respondent referred to former communications between the parties, and especially to respondent's letter of January 7, 1907, wherein they accepted appellant's order for 1,000,000 feet of lumber as per appellant's letter of the 27th of December, 1906. This contractual relation was established at the instance and invitation of appellant, as is evidenced by their letter of December 6, 1906.
The terms of the contract essential to the principal issue in this case are set forth in appellant's letter of December 27, 1906; and this letter, together with respondent's letter in reply thereto, to wit, of date January 7, 1907, in our judgment evidenced a meeting of the minds of the parties as to three essential things in this case; that is, the amount of lumber, the season in which the lumber was to be cut by respondent, and the time of deliverythe latter limited only by a specific condition, to wit, when dry. In this respect, it may be well to note that respondent's letter of January 7, 1907, in reply to appellant's letter of December 27, 1906, specifically mentions these terms in detail. The letters referred to are as follows:
Tonopah, Nev., December 27-06.
Messrs. Sunset Lumber Co., Sattley, Cal.Gentlemen: We are in receipt of your letter of December 24th and are pleased to hear that you do not intend to discontinue the lumber business entirely. We would like very much to enter into a contract with you for 1,000,000 feet or as near that as possible, providing, of course, that you will cut the same quality of lumber that you did during last year and if agreeable to you, we are willing to close this contract at the present time, the lumber to be cut during the coming season and delivered when dry. Prices to be based on Truckee river price list September 1st-06 which is at present in vogue. If this is satisfactory to you, write us a letter to this effect and we will consider
the matter closed until such time as you start cutting when we will forward to you a cutting list.
Awaiting your reply, we are,
Sattley, Sierra Co., Cal., 1-7-07.
Tonopah Lumber Co., Tonopah, Nev.Gentlemen: Replying to your favor of the 27th ult. addressed to the Sunset Lumber Co., beg to say that the writer and those associated with him will be pleased to furnish you the 1,000,000 feet or more of No. 1 common pine and fir to be cut this season and shipped when dry. The prices to be based on the Truckee river price list of Sept. 1st, 1906. We expect to cut 3,000,000 feet, including all grades, and would be pleased to furnish you some uppers, such as finish, rustic, ceiling, flooring, ship-lap, moldings, etc., based on the same list as above. Should you desire to have any of this, please let us know as soon as convenient. We expect to do business under a new name, and will notify you of the same as soon as our articles of incorporation are filed.
Awaiting you reply, we remain,
Appellant's letter of January 12 amounts merely to a confirmation of the terms agreed upon in the two former communications.
The cutting order sent by appellant to respondent April 29, 1907, pursuant to the contract, for 700,000 feet of lumber, says nothing as to sizing or surfacing.
On June 10, 1907, respondent wrote to appellant as follows:
Tonopah Lumber Co., Tonopah, Nev.Gentlemen: Referring again to you letter of the 29th of April, we
would ask if you want the lumber surfaced. And if so, please give us a memo of the thickness and widths wanted. We would also like to receive your cutting order for the 300,000 feet, as per you letter of May 6th, as we will soon be ready to commence cutting on it.
Another letter from respondent to appellant, dated July 24, 1907, on the same subject, is as follows:
Tonopah Lumber Co., Tonopah, NevadaGentlemen:
On the 18th utl., we wrote you asking if you would want some of the lumber in the cutting order you gave us surfaced, and if so, please let us know what thicknesses it should be. As yet, we have not received a reply. Kindly let us know as soon as convenient. Would also like to receive your cutting order for the balance of 300,000 feet on the contract, per your letter of May 6th. We can commence shipping soon after the first of next month.
Respondent's letter of September 20 pertains to the same subject, namely, the sizing of the lumber, and urges appellant to give them information on that subject. It is as follows:
Sattley, Cal., Sept. 20, 1907.
Tonopah Lumber Co., Tonopah, Nev.Gentlemen: We have written you twice asking you if any of the lumber on the order you gave us is to be surfaced or sized. As yet we have received no reply. We have quite a lot of the order on hand and as the season is getting late we are anxious to commence moving the lumber as we have to haul it with teams to the railroad. If you will kindly advise ...