Embry (P) was an employee of Hargadine (D). He was paid a wage of $2,000 per year and was responsible for the sample department. A written contract between the two had expired on December 15, 1903. A meeting occurred on December 23, 1903, wherein P made an ultimatum that he would have to quit and seek work elsewhere unless his contract was renewed. D's president, McKittrick, then told P that 'Go ahead, you're all right. Get your men out and don't let that worry you.' P took McKittrick at his word and worked until February 15th when he was told that his services were no longer needed because business was bad. McKittrick denied the conversation with P. P also testified that when he complained to McKittrick of his termination, he was told it was the work of the board of directors. The case was tried once and then tried again. At the second trial the court gave an instruction with respect to the formation of a contract and refused P’s proffered instruction. It required that both parties subjectively intend to contract or there would not be a contract. This appeal ensued about that jury instruction.