
    Carney and another, Respondents, vs. McFarlin, Appellant.
    
      September 10
    
    October 22, 1946.
    
    
      For the appellant the cause was submitted on the brief of Lorens & Neubauer of Milwaukee.
    
      Ray C. Twining of Milwaukee, for the respondents.
   Fairchild, J.

The appellant urges on this appeal that the evidence viewed in its most favorable light “did not warrant the trial court in finding that a valid contract was established.” The testimony upon the trial with relation to the making of a transcript of the proceedings is all to the effect that there existed a general desire for the recording of the testimony and pertinent statements. Mr. Carney, one of the plaintiffs, was asked to be present for the purpose of making arrangements for providing those who desired them with copies. The evidence shows conclusively that at the opening of the afternoon session the chairman announced that arrangement had been made so that anyone desiring a copy or copies could order them from the reporter at twenty-five cents per page. The appellant promptly ordered one copy for himself. Later he ordered eight additional copies, telling the reporter as he did so that there were unions or officials of unions he thought would be interested in having copies. At first he told the reporter he would give her their names and addresses, but then he said, “Well, never mind, I guess you might just as well give me all of the copies and I will see that they get them.” “I guess I will have to'take my chances on getting the money for them.’'’

While it is true that the record shows no specific inquiry or mention of the price of the copies by either the reporter or the appellant at the times he placed his orders, yet his conduct in ordering the copies after the announcement was made, in which it was stated that the price of copies would be twenty-five cents per page, was properly considered and held by the -trial court to be an assent to the terms of the agreement. The order was placed; the respondents performed their part of the agreement; delivery was made, and part payment was made. It thus appears that all essential elements of a contract are present. The efforts of appellant to return the records after they were delivered to him and his attempted repudiation of the contract were not effective.

By the Court. — Judgment affirmed.  