repeat his message, and it follows that, under the contract which he made, he can recover only twenty-five cents, the cost of the message. The plaintiff contends that, as the auditor has found that the defendant by its agents was guilty of gross negligence in not delivering the message seasonably, this stipulation does not exempt the defendant from liability for the damages actually sustained. The only negligence shown in this case was an unexplained delay in delivering the message on the part of the messenger boy, to whom it was, after its receipt, entrusted for delivery. It may be that the company might be guilty of some fraudulent or gross negligence in transmitting or delivering a message, so that it would not be protected by its regulation from liability for the actual damages, though in excess of the sum stipulated. But the negligence of the messenger boys in delivering messages was plainly contemplated by the parties when they entered into the stipulation; and there are no principles of public policy which should prevent the company from stipulating that it will not be responsible. for such negligence beyond a fixed amount, unless it receives a reasonable compensation for assuming further responsibility. Without discussing the question as to what is the difference, if any, between ordinary and gross negligence, we are of opinion that the only negligence proved in this case was such negligence as the parties intended to include in their stipulation; and that such stipulation, as applied to such negligence, is reasonable and valid. It follows that the Superior Court rightly ruled and found that the plaintiff was entitled to recover only twenty-five cents. DUTY OF TELEGRAPH COMPANIES AS TO MESSAGES.-Although there are some cases to the contrary: Parks v. A. C. Tel. Co., 13 Cal. 422; Baldwin v. U. S. Tel. Co., 1 Lans. 125, the weight of nority clearly is that telegraph companies are not common carriers: Birney 7. N. Y. & W. T. Co., 18 Md. 341; W. U. T. Co., V. Carew, 15 Mich. 525; Breese v. U. S. Tel. Co., 45 Barb. 274. They, however, exercise a public employment, with duties and obligations analogous to those of common carriers Exceptions overruled. and other public servants: Graham v. Davis, 4 Ohio St. 377; Telegraph Co. v. Griswold, 37 Id. 311; Breese v. U. S. Tel. Co., 48 N. Y. 132; Passmore v. W. U. Tel. Co., 78 Penn. St. 238; Tyler v. W. U. Tel. Co., 60 Ill. 421. They must transmit all prepaid messages presented for transmission (Breese v. U. S. Tel. Co., 48 N. Y. 132), excepting such as are indecent or contrary to law (W. U. Tel. Co. v. Ferguson, 57 Ind. 495), with a care and diligence adequate to the business: Breese v. U. S. Tel. Co., 48 N. Y. 132. Ordinary care and diligence must at least be used by the company: Pope v. W. U. Tel. Co., 9 Ill. App. 284. This means more than that the company need deliver a message only at the office of the receiver. If he is not there it must use ordinary diligence to find him: Pope v. W. U. Tel. Co., 9 Ill. App. 284. It must send the message not merely to the telegraph station, but to the person addressed W. U. Tel. Co. v. Lindley, 62 Ind. 371. Messages must be sent with reasonable promptitude, though what is reasonable depends upon the circumstances of each case, and is to be determined by a jury: Behm v. W. U. Tel. Co., 8 Biss. 131. It is not the duty of the company to keep more than one operator at a small station, and delay while he is at dinner is not negligence: Behm v. W. U. Tel. Co., 8 Biss. 131. Nor is delay at a repeating office unreasonable : Behm v. W. U. Tel. Co., 8 Biss. 131. All messages must be transmitted in the order of time in which they are received; unreasonable discrimination is prohibited by law Davis v. W. U. Tel. Co., 1 Cin. 100; W. U. Tel. Co. v. Ward, 23 Ind. 377; and punitive damages have been held allowable for wilful and unjust discrimination: Davis v. W.U. Tel. Co., 1 Cin. 100. But private dispatches mnst yield to those given precedence by statute-e. g., press dispatches or to dispatches of a public nature: W. U. Tel. Co. v. Ward, 23 Ind. 377. others, the following: For unreasonably delaying a message announcing the death of the receiver's mother: So Relle v. W. U. Tel. Co., 55 Tex. 308; Logan v. W.U. Tel.Co., 84 Ill. 468. For its messenger negligently permitting a forged dispatch saying a draft was genuine, to be substituted for one saying the sender (a bank) "had drawn no such bill," and this notwithstanding the plaintiff might recover from the person to whom the draft was paid: Strause v. W. U. Tel. Co., 8 Biss. 104. For the negligence of an operator in not knowing of a county seat on the line: W. U. Tel. Co. v. Buchanan, 35 Ind. 430. For loss caused by failure to deliver correct market reports: Turner v. Tel. Co., 41 Ia. 458. And such reports are presumed to have been correctly given to the telegraph company contracting to furnish them. For delay in delivering a message to attach certain property: Bryant v. Am. Tel. Co., 1 Daly 576, and the plaintiff need not exhaust his remedies against the debtor before suing the company: Idem. For changing an order to buy 500 bales to one to buy 2500: W. & N. O. Tel. Co. ▼. Hobson, 15 Grat. (Va.) 122. For a failure to forward beyond an intermediate office: U. S. Tel. Co. v. Wenger, 55 Penn. St. 262. For sending a message authorizing a bank to give credit when the operator knew the sender was not the cashier by whom the message purported to have been signed, and knew that the sender had no authority to act for such cashier: Elwood v. W. U. Tel. Co., 45 N. Y. 549. For delay in sending a message by an attorney directing that a case "on call" be held without adjournment until he could come: Sprague v. W. U. Tel. Co., 6 Daly 200. LIABILITY.-The method of enforcing the faithful performance of its duties by a telegraph company is found in the pecuniary responsibility which they incur for failure: Telegraph Co. v. Griswold, 37 Ohio St. 311. Generally a telegraph company is liable for any loss or damage caused by its negligence in transmitting But a telegraph company is not liable and delivering messages: N. Y. & W. for errors or imperfections in transmitTel. Co. v. Dryburg, 35 Penn. St. 298; ting messages which arise from causes U. S. Tel. Co. v. Gildersleve, 29 Md. not within its control; that is, a failure 233; W. U. Tel. Co. v. Fontaine, 58 Ga. of the electrical current, irregularities in 433, and cases infra. Instances wherein its power or efficiency, and interruptions it has been held liable, are, amongst or confusions arising from storm or wind, heat or cold; nor from imperfections in the working of the wires arising from necessary imperfections or inherent characteristics in the metals, or from things necessarily pertaining to the business of communicating by telegraph, or the machinery and implements invented for that purpose: White v. W. U. Tel. Co., 14 Fed. R. 710; Sweatland v. 1. & M. Tel. Co., 27 Ia. 433. SAME-CONNECTING LINES.-Connecting telegraph companies are bound to transmit messages at the request of other companies, and are liable for negligence in not doing so: Baldwin v. U. S. Tel. Co., 54 Barb. 505. The agency of one company to take messages for another has been presumed: Baldwin v.U. S. Tel. Co., 54 Barb. 505; 1 Lans. 125. But see s. c. 45 N. Y. 744. A limitation of liability applies only to the first company, and not to succeeding connecting lines: Squire v. W. U. Tel. Co., 98 Mass. 232. A statute requiring telegraph companies under penalty to take messages from connecting lines is beneficial to the public, and should be liberally construed: U. S. Tel. Co. v. W. U. Tel. Co., 56 Barb. 46. But see Thurn v. Alta Tel. Co., 15 Cal. 472. If the negligence be by a connecting company, either the first telegraph company or the sender may sue for the penalty: U. S. Tel. Co. v. W. U. Tel. Co., 54 Barb. 46; W. U. Tel. Co. v. Ward, 23 Ind. 377. CONSIDERATION.-The mutual obligations of the sender and the company are sufficient consideration to maintain the action, although no money was paid for transmission: W. U. Tel. Co. v. Meek, 49 Ind. 53. NATURE OF ACTION.-The action for damages for a failure to deliver a message may be at common law or by statute. Although an action ex delicto it is founded upon a contract; and that contract is the contract to transmit, not the contract the benefit of which was lost by the telegraph company's negligence: W.U. Tel. Co. v. Hopkins, 49 Ind. 224. PARTIES.-Either the receiver or the sender of a message may sue the telegraph company for negligence in transmitting or delivering it: Aiken v. Tel. Co., 5 S. C. 358; W. U. Tel. Co. v. Fenton, 52 Ind. 1; Rose v. U. S. Tel. Co., 3 Abb. Pr. N. S. 409; 34 How. Pr. 308; but it has been decided that the sender cannot sue a connecting telegraph company for its negligence. He must sue the company with whom he made his contract: Thurn v. Alta Tel. Co., 15 Cal. 473. In Maryland it is decided that a broker telegraphing an order may sue in his own name, but as trustee for his principal, for damages in delaying it: U. S. Tel. Co. v. Gildersleve, 29 Md. 232. In New York it is decided that the broker cannot sue, but the principal must: Rose v. U. S. Tel. Co., 6 Rob. 305; 3 Abb. Pr. (N. S.) 409; 34 How. Pr. 308. In California it is held that in order to give a right of action to the principal the fact of the agency must have been disclosed: Thurn v. Alta Tel. Co., 15 Cal. 472. DEFENCES. There are, however, many exceptions and limitations to the doctrine that a telegraph company is liable for damages caused by its delays and errors in sending messages. Such a company may make reasonable rules and regulations for the transaction of its business, non-observance of which may form a good defence to an action for damages against it: U. S. Tel. Co. v. Gildersleve, 29 Md. 232; Sweatland v. I. & M. Tel. Co., 27 Ia. 433; Passmore v. W. U. Tel. Co., 78 Penn. St. 238; W. U. Tel. Co. v. Graham, 1 Col. T. 230; W. U. Tel. Co. v. Buchanan. 35 Ind. 430; Breese v. U. S. Tel. Co., 48 N. Y. 132. Thus, a rule that the company will not be liable for the correct transmission of the message beyond the amount received therefor, unless repeated at an additional expense, is a reasonable regu lation: Becker v. W. U. Tel. Co., 11 Neb. 87; Redpath v. W. U. Tel. Co., 112 Mass. 71; Schwartz v. A. & P. Tel. Co., 18 Hun 157; Wann v. W. U. Tel. Co., 37 Mo. 472; Breese v. U. S. Tel. Co., 45 Barb. 274; Camp v. W. U. Tel.Co., 1 Metc. (Ky.) 164; U. S. Tel. Co. v. Gildersleve, 29 Md. 232; Sweatland v. . 1. & M. Tel. Co., 27 Ia. 433. There can be no recovery on an unrepeated message unless gross negligence or fraud is proved: Redpath v. W. U. Tel. Co., 112 Mass. 71. Nor is proof of a mistake in an unrepeated message prima facie proof of negligence: Sweatland v. I. & M. Tel. Co., 27 Ia. 434; Becker v. W. U. Tel. Co., 11 Neb. 87. But a rule exempting from liability where the message is unrepeated does not apply where the company makes no effort to send the message: Birney v. N. Y. & W. Tel. Co., 18 Md. 341. Nor is a failure to repeat a defence against a failure to deliver: W. U. Tel. Co. v. Graham, 1 Col. T. 230. But it has been decided that non-observance of such a rule is a good defence even though the mistake is of such a kind as would not have been prevented by repetition: Grinnell v. W. U. Tel. Co., 113 Mass. 299. The rule as to repetition has also been held void in law W. U. Tel. Co. v. Tyler, 74 Ill. 168; and again, to exempt from such errors only as arose from causes beyond the control of the company: Idem. Sec, also, Passmore v. W. U. Tel. Co., 9 Phil. 90. So, also, a telegraph company may make a rule as to the time and manner of presenting claims to it for damages, as that such claims shall be presented within sixty days from sending the messages: Wolf v. W. U. Tel. Co., 62 Penn. St. 83; Young v. W. U. T. Co., 65 N. Y. 163; and presentment of an imperfect claim for damages within sixty days to a clerk not authorized to audit it, is not compliance with the condition, even though the proper officer be temporarily absent: Young v. W. U. Tel. Co., 65 N. Y. 163; and the words "presented in writing," mean that the claim shall be delivered and left with the proper official: Idem. So a rule requiring presentment in twenty days is lawful: Aiken v. Tel. Co., 5 S. C. 358. Ordinarily the conditions upon which messages are received for transmission are printed upon blanks furnished by the company upon which to write messages. The sender of the message is held bound by the conditions so printed on the blank he uses Breese v. W. U. Tel Co., 45 Barb. 274; W. U. Tel. Co. v. Carew, 15 Mich. 525; Young v. W. U. T. Co., 65 N. Y. 163; 34 N. Y. Sup. Ct. 390; Birney v. N. Y. & W. Tel. Co., 18 Md. 342. The receiver also is bound by such conditions: Aiken v. Tel. Co., 5 S. C. 358. So is any person sending a message, if he knows of the rules or conditions, whether he uses a blank containing them or not; W.U. Tel. Co. v. Buchanan, 35 Ind. 429. Knowledge will be inferred against him from his long possession and constant use of the blanks: Breese v. U. S. Tel. Co., 48 N. Y. 132. There must be an actual express or implied contract to abide by the conditions. Notice merely of such conditions will not release from liability: Baldwin v. U. S. Tel. Co., 1 Lans. 125. Although the conditions be printed in small type, yet if the heading calling attention to them be in large type, they will be binding: Wolf v. W. U. Tel. Co., 62 Penn. St. 83. And rules established by law are part of the contract: U. S. Tel. Co. v. Gildersleve, 29 Md. 232. Sometimes the company's negligence is not the proximate cause of the damage, and it is held not liable, although clearly guilty of an error. Thus, where B. telegraphed A. for $500 and the message read $5000, which was sent, whereupon B. absconded with it. Held, that the telegraph company was not liable Lowery v. W. U. Tel. Co., 60 : N. Y. 198. See, also, First Nat. Bank v. W. U. T. Co., 30 Ohio St. 555. An impostor, at Cincinnati, sent a dispatch in the name of B. over defendant's line, to C., at Selma, Ala., requesting C. to send a telegraphic money order to B., at Cincinnati. C. thereupon purchased of defendant, at Selma, a telegraphic money order payable to B. at Cincinnati, and defendant paid the money there to the impostor who was the sender of the message: Held: First. Where there is nothing to create suspicion in the minds of the agents of a telegraph company, it is the duty of the party of whom the request is made to remit the money, to ascertain for himself whether he who makes the request is the person he professes to be. Second. In the absence of anything arousing suspicion, the telegraph company has no right to refuse payment of the money to him in reply to whose message it was sent; and it is not liable for a payment made bona fide to such person, though it turns out that he was an impostor: W. U. Tel. Co. v. Meyer, 61 Ala. 159. Acceptance of the amount paid by the sender for transmission is not a defence: W. U. Tel. Co. v. Buchanan, 35 Ind. 430. Neither is it a good defence that lines were in good order and competent and faithful servants employed: W. U. Tel. Co. v. Meek, 49 Ind. 53. The fact that the negligence occurred out of the state from which the message was sent, and which state gave by its statute the action for the penalty, will not defeat the suit: W. U. Tel. Co. v. Hamilton, 50 Ind. 181. And an ineffectual attempt to deliver a message after business hours, or on Sunday, is no excuse for a failure to deliver: W. U. Tel. Co. v. Lindley, 62 Ind. 371. But the fact that the person to whom the message was addressed did not live within a specified distance of the telegraph station may be matter of defence: Ibid. complaint must, as required by the stat ute, aver that the defendant was engaged in telegraphing for the public." An averment that it was "engaged in the business of transmitting telegraphic messages for hire" will not suffice; nor will it be helped by the court taking judicial notice of the fact that the company is a public servant: W. U. Tel. Co. v. Axtell, 69 Ind. 199. See, also, W. U. Tel. Co. v. Ferguson, 57 Ind. 495. EVIDENCE.-The onus is on the plaintiff to prove negligence: U. S. Tel. Co. v. Gildersleve, 29 Md. 233; and upon the company to excuse a mistake: Turner v. Tel. Co., 41 Ia. 458. Failure to transmit and deliver the message in the form or language in which it is received, is prima facie negligence, for which the company is liable, and to exonerate itself from liability thus presumptively arising it must show that the mistake was not attributable to its fault or negligence: Telegraph Co. v. Griswold, 37 Ohio St. 313; Bartlett v. W. U. Tel. Co., 62 Me. 209; Rittenhouse v. Independent L. Tel. Co., 44 N.Y. 263; Tyler v. W. U. Tel. Co., 60 Ill. 421; Baldwin v. U. S. Tel. Co., 45 N. Y. 744; W'. U. Tel. Co. v. Carew, 15 Mich. 525; De La Grange v. S. W. Tel. Co., 25 La. Ann. 383; W. U. Tel. Co. v. Meek, 49 Ind. 53; Turner v. Hawkeye Tel. Co., 41 Ia. 458. In a suit against a telegraph company for a failure to deliver a message, the original message given the operator must be given in evidence or its absence accounted for W. U. Tel. Co. v. Hopkins, 49 Ind. 223. An operator's admission of error, made several days after the message was sent, is not evidence against the company, not being part of the res gesta: Aiken v. Tel. Co., 3 S. C. 358. See, also, Sweatland v. I. & M. Tel. Co., 27 Ia. 433. The mere fact of an error in an unrepeated message, is not, without further proof of carelessness, sufficient PLEADING. In a suit to recover a to authorize a recovery of more than the penalty for a failure to transmit, the sum paid for transmission: Becker v. |