Epitomized Opinion

Action to recover damages for breach of contract to do excavating. Bowers recovered verdict and judgment against Hinaman & Hedden. The latter on error claim the testimony did not disclose that parties’ minds had met to establish á contract was really made. At the beginning of negotiations it was understood there would be a written contract, but the evidence disclosed that later there was a definite agreement to dispense with the written contract and proceed with the work, Hinaman & Hed-den maintained there could not be a binding contract unless the parties’ minds met and agreed upon all points'intended by either to be comprised in the contract. In affirming the judgment the Court of Appeals held:

1. The jury was right in finding that the minds of the parties met and agreed upon all matters concerning which they negotiated.

2. Where parties negotiate and agree upon certain things, there is a contract even though one party intended other related matters which were not mentioned to be included therein.

Dicta: 1. When it is definitely expressed and understood there is to be no contract until a formal writing is executed, no binding agreement is formed until then.

2. If all the terms of the agreement have not beeen settled and it is understood that the unsettled terms are to be determined by.formal contract, there is ho binding obligation till the writing is executed.