As we view the case it is needless to consider the numerous errors assigned by appellant’s counsel. It is conceded by them that defendant is not liable unless it assumed and agreed to carry out the contract made with F. Byschlag & Son. There was no pretense on the oral argument that there is any evidence to that effect unless it be that of plaintiff’s agent to the effect that defendant’s president said to the former that not later than the coming spring he would “ take up the subject of the show-card proposition and, use them at that time,” referring, evidently, to the designs for the show cards that were present when the statement was made. We are unable to discover anything in that evidence to indicate the making of a contract. It shows clearly that Frederick Byschlag did not intend to even discuss, at the time of the interview, the subject of making a contract. The words upon which appellant’s counsel rely, “ use them at that time,”' plainly did not mean use the show cards, but use the designs and approved sketches which the agent had exhibited in considering the subject of adopting the method of advertising contemplated by the old show-card contract, and making a new contract to that end. That seems to be the only sensible meaning of what was said to plaintiff’s agent, and, so far as appears, plaintiff so understood it. There is nothing in the evidence as to what occurred after the interview, to create even a suspicion that plaintiff supposed it was to go on and get out the advertising material ready for delivery to defendant not later than spring. On the contrary, its attitude was that of waiting till spring to further negotiate in regard to making a contract with defendant, in accordance with the fair meaning of the language used to plaintiff’s, agent. At the close of the evidence the court should have dismissed the action because of an entire failure of proof of facts sufficient to charge defendant.

By the Court.— The judgment is affirmed.