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P brought an action of assumpsit against D on a contract for the delivery in Cincinnati of 100,000 bushels of coal. On the 22d of November 1864, P and D with others were in an eating house in Pittsburgh when the conversation turned to the prices of coal. D was a coal merchant and said he could deliver coal as cheaply in Cincinnati as in Pittsburgh, that he could deliver there at sixteen cents per bushel. P asked him if he would deliver him 100,000 bushels at Cincinnati at that price D said he would and that it was to be cash, to which Finney said 'Certainly,' and drew a check for $16,000 on his banker. D said it made no difference about the check, he would prepare the papers the next day; and said, also, that he must have $10 per day per barge for the time they should be detained after delivering the coal. A memorandum was prepared by P which D refused to sign. It was agreed that P should meet D at D’s office, who said he would then have the article of agreement ready. P went to D's office, where the contract and the security, would be in the sum of $25,000. P said he would give him a check for the money. D replied that he did not want the money for the barges, but security for their return and that P had proposed to give as sureties Mr. Shoenberger or Mr. Bagley. P then said, 'You refuse to deliver the coal.' D said, 'I did not refuse to deliver the coal, but I want security that you will fulfill your part of the agreement.' Nothing was signed. P brought this suit. The point of contention at trial was the effect of reducing oral terms to a written contract and whether and how the written terms were to be proffered. The court instructed the jury if a party wanted an oral contract to be in writing, it must have affirmatively made that a condition of the oral contract. If not the oral contract was valid if the parties later refused to sign the supposed written version of the same contract. P got the verdict for $2000 and D appealed.

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