Plaintiff, as assignee of Louis Henry, Roland E. Loop and Ray Howard, brought this action against 'defendant to rescind an agreement to purchase certain shares of stock in Interstate Lumber Company, a corporation. Judgment was rendered in favor of plaintiff, and defendant now appeals upon the ground of insufficiency of the evidence to sustain the findings, presenting the issues raised by a bill of exceptions.

It appears that defendant was the owner of more than a majority of the stock of Interstate Lumber Company, and for services rendered in the organization of this company had given to James H. Smith and H. E. Shannon an option to purchase all or a part of this stock. That portion of this option or agreement here pertinent provides:

Thereafter Smith and Shannon assigned to Loop, Henry and Howard an interest in this option and a letter was sent defendant by Mr. Howard upon behalf of himself and his associates, together with a check for $1,080. This letter is as follows:

At the time in question the Interstate Lumber Company was indebted to Messrs. Henry, Loop and Howard in the sum of $4,058.33, the same being evidenced by three promissory notes. It is also in evidence that at all of the times herein mentioned appellant was the secretary of and owned practically all of the stock of Interstate Lumber Company.

Subsequently the same parties wrote defendant, of which the following is here material:

The balance of $4,000 was never paid defendant, the only attempt toward payment being set forth in the following letter:

About this time a difference of opinion arose among the officers and directors of the lumber company as to the policy of the company, and particularly as to the granting of certain discounts to plaintiff herein. Defendant being in control of the lumber company then stated that he objected to plaintiff’s assignors holding but a small amount of stock, sitting as directors and having a voice in the management of the concern, and that unless plaintiff’s assignors would agree to take practically all of his stock off his hands he would not sell them the 500 shares contemplated but would insist they agree to invest at least $10,000 in the company.

Thereupon, on the day following this meeting, defendant tendered to Loop 100 shares of stock in consideration of the $1,080 already paid. Loop refused to accept 100 shares and the following letter was then sent defendant:

The following day defendant replied thereto as follows:

Upon the basis of the foregoing correspondence it is the contention of respondent that upon the failure of defendant to deliver 500 shares of Interstate Lumber Company stock that plaintiff had a right to rescind and is' entitled to a return of $1,080 paid upon account therefor.

It is apparent from the evidence and found by the court that plaintiff’s assignors entered into a contract to purchase and defendant agreed to sell 500 shares of stock of Interstate Lumber Company, of which $1,080 was paid in cash and the balance was to be collected by defendant from the lumber company in satisfaction of an indebtedness by the lumber company to plaintiff’s assignors represented by three promissory notes held by them.

Appellant attempted to deliver to plaintiff 100 shares in consideration of the $1,080 received but the answer does not set up any agreement to purchase 100 shares, and from his testimony it is apparent defendant never accepted the terms of the proposal by plaintiff’s assignors that he collect the balance due for the stock purchased from the lumber company. It seems, therefore, that the minds of the parties never met as to the terms and conditions of the sale and therefore no contract existed as to the purchase and sale of this stock. Under such circumstances respondent is entitled to recover the money paid.

Appellant also contends that plaintiff herein had no capacity to sue inasmuch as the assignment was made after the commencement of this action. No objection to the assignment is made by any of the assignors. In the complaint, duly verified, an assignment is alleged; that the answer, unverified, denied the allegations of the paragraph of the complaint alleging this assignment, which, of course, would not raise the issue. However, it appeared from the testimony the cause of action had been assigned, and after the action was commenced a formal written instrument evidencing that fact was executed. An objection was made to the introduction of this testimony and to the assignment but the objection was made after the evidence was received and was not revived by motion to strike or otherwise. Furthermore, there was no demurrer to the legal capacity of plaintiff to sue nor was such defense suggested in the answer. Other objections of a technical nature were urged but in view of our conclusions on the real issue of the case it is not necessary to pass upon these minor and collateral matters.

The judgment is affirmed.

Plummer, J., and Thompson, J., concurred.