For statement of facts in this case, see decision of Court of Appeals, post page-.

Defendant contends:

1. Defendant never agreed to sell “deep mined” coal. There was no meeting of the minds of the parties and therefore no contract. The modified acceptance of plaintiff constituted only a counter proposal.

2. The modified acceptance by plaintiffs of defendant’s offer was never assented to by defendant.

3. Plaintiff has not pleaded or shown any contract by defendant to deliver “deep mined” coal.