however, was not challenged by demurrer or upon the admissibility of evidence, and was only raised upon the motion for a nonsuit. This, however, is not a ground for a nonsuit. Section 4354, Rev. Codes, provides that an action may be dismissed or a judg ment of nonsuit entered on five separate grounds. None of the first four mentioned applies to the case at bar, but the fifth is applicable, and provides that the court upon motion may grant a nonsuit, if plaintiff fails to prove a sufficient case for the jury. It was evidently on that ground that the court sustained the motion for a nonsuit, and entered a judgment of dismissal, as it is virtually conceded the court held that said stipulation was valid. This court holds that the evidence introduced on the trial was sufficient to show negligence; in other words, to make a prima facie case, and as the judgment must be reversed and the cause remanded, the plaintiffs should be permitted to amend their complaint, if they desire to do so. If application had been made at the close of the trial, to amend the complaint to conform to the proof, the court no doubt would have granted the applica tion, as, under the views expressed in this opinion, the plaintiffs made a prima facie case by the evidence introduced. Where a telegraph company fails to transmit a message correctly, the proof of that fact is prima facie evidence of the company's negligence. So, proof by the plaintiff of the contract, which may be implied by the delivery of the message to be transmitted and its acceptance by the defendant's agent, and of the breach, makes out a prima facie case, and the plaintiff need not go further and show any further negligence or omission of the defendant. Jones, Teleg. & Teleph. Co. § 36. If the failure was not the result of negligence, the means of showing that fact is almost invariably within the exclusive possession of the company, and for the courts to require the sender to prove the negligence, after showing the mistake, would be in many cases to require an impossibility, not infrequently resulting in enabling the company to evade a just liability. Section 36, supra, and authorities there cited. of defense. Therefore, when the plaintiff proved that said message was delivered to the agents of the company for transmission, and that they accepted it and made a mistake in its transmission, the plaintiff had made a prima facie case, and the court erred in granting a nonsuit and entering a judgment of dismissal. It is also contended by counsel for respondent that the agreement for the sale of the cattle was made with the agent of the Colorado Live Stock & Commission Company, and that, by reason of that contract, the steers were shipped to said commission company, and that fact would render said company liable for the balance due on said steers, at the rate of $3.95 per hundredweight. There is nothing in that contention, for the reason that the appellants did not close the contract for the sale with White, but closed it with the commission company. The negotiation for the sale of the steers was begun with White, but appellants would not sell them until they communicated with the company by telegraph. In the reply telegram, the company stated that they would honor the draft if the cattle were billed to them. The contract was made directly with the commission company, and not with White, and on that state of facts the commission company could not be com- . pelled to pay a greater price than it had agreed to pay as per its reply telegram. The judgment is reversed and the cause remanded for further proceedings, in accordance with the views expressed in this opinion. Costs of appeal are awarded to appellant. Stewart and Ailshie, JJ., concur. A rehearing having been granted, Ailshie, J., on June 28, 1910, handed down the following additional opinion: A rehearing was granted in this case on that particular portion of the original opinion of the court, which holds that "the contract was made directly with the commission company, and not with White, and on that state of facts the commission company could not be compelled to pay a greater price than it had agreed to pay as per its reply telegram." On the reargument of this case on the point submitted, the controversy has revolved about the legal proposition as to whether or not a telegraph company, in receiving and sending a message, acts as the We conclude that when the sender delivers a message to the agent of a telegraph company for transmission, and it is received by him for transmission, it is clearly implied and understood that the message must be correctly sent, and upon proof that it was not correctly sent, a prima facie case is made. Then if the mistake was not occa--agent of the sender. A determination of sioned by incompetent operators or defective instruments, and was occasioned by the elements or some matter or thing over which the company had no control, it devolves upon the company to prove that as a matter this question is necessary to a correct and proper understanding of the principle of law applicable in the determination of the case. We have made a very careful and somewhat extended examination, both of the try, on the other hand, it is answered, as a general rule, in the affirmative. Courts have rarely considered at length the relationship between a telegraph company and its employer. The view that the employer of a telegraph company is responsible upon a negligently altered message has been rested, it seems, upon two different grounds: (1) A telegraph company is the agent of its employer; consequently, it renders the employer responsible upon any message which it delivers. (2) One who employs a text writers and the court decisions on this | This question is answered in the negative question, and emerge from the investigation in England and in Scotland. In this counfully convinced that the authorities are ir reconcilable on the question. This confusion, it seems to us, has arisen out of the endeavor on the part of the courts to determine just what particular settled and es tablished rule of law is applicable, and should be invoked in dealing with an entirely new agency as applied in business and commerce. This is a difficulty which constantly confronts the courts. New inven tions are constantly coming into use; new uses, both public and private, are coming into being; new methods and means of telegraph company employs it to do a certransacting and carrying on business are ap-tain act,-to communicate a certain mesplied; and it is a problem fraught with too sage; consequently, he is responsible for the many difficulties and embarrassments, as torts of the company committed in the perthe books will readily disclose, for the courts formance of that act. These grounds will to apply, in every instance, the correct prin- now be considered separately and in order.” ciple of law, so as to accomplish substantial In a note to this section the author cites justice to all concerned, and at the same Durkee v. Vermont C. R. Co. 29 Vt. 127; time promote the public interests involved. Saveland v. Green, 40 Wis. 431; and WilIn the early days of communication by son v. Minneapolis & N. W. R. Co. 31 Minn. telegraph, when cases began to find their 481, 18 N. W. 291, with the following comway into the English and Scotch courts, it ment on those cases: "These cases overwas held by those courts that the law of look, it seems, the fact that a telegraph comagency did not apply, and that the com- pany, in delivering an altered message, does pany should not be treated as an agent of an act beyond the scope both of the authority the sender of a message, but rather as an which the employer actually delegates to agency of the government. Henckel v. Pape, it, and of the authority that he holds it out 40 L. J. Exch. N. S. 15, L. R. 6 Exch. 7, 23 as possessing." L. T. N. S. 419, 19 Week. Rep. 106; Allen, Teleg. Cas. 567; Verdín Bros. v. Robertson (1871) 10 Sc. Sess. Cas. 3d series, 107; Allen, Teleg. Cas. 697. To the same effect see Playford v. United Kingdom Electric Teleg. Co. L. R. 4 Q. B. 706; Allen, Teleg. Cas. 437; Dickson v. Reuter's Teleg. Co. L. R. 2 C. P. Div. 62, L. R. 3 C. P. Div. 1, | 24 Eng. Rul. Cas. 774. There the telegraph is under the control of the government and is operated in connection with the postoffice department (32 & 33 Vict. chap. 73), and the cases were apparently decided on the theory that the government is not responsible for the negligence, errors, or mistakes of its clerks and servants. In this country there seems to have been more or less diversity of opinion. Some of the cases, and especially the early cases, proceeding upon the implied, if not express, theory that the company is the agent of the sender, and that the law of agency is the rule of law to be applied in such cases. Mr. Gray, in his work on Communication by Telegraph, written twenty-five years ago, at § 104, says: "While the employer of a telegraph company is responsible upon the words of a message as delivered, where they are the ones that he authorized, is he responsible upon them where, owing to the negligence of the company, they differ materially from the ones that he authorized? Subsequent to the issuance of Gray's work and in 1891, Judge Seymour D. Thompson issued his work on the Law of Electricity, and in § 480 says: "In England and Scotland, the idea that the telegraph company is the agent of the sender, to transmit his communication to the addressee, is repudiated." In § 481 he discusses and reviews the decision of the supreme court of Tennessee in Pepper v. Western U. Teleg. Co. 87 Tenn. 554, 4 L.R.A. 660, 10 Am. St. Rep. 699, 11 S. W. 783, and disapproves the holding, which he calls "dictum," in that opinion, and in § 482 the author says: "It is obvious, however, that the foregoing principle cannot be of universal application. Many cases will arise where the material fact will be, not what was the message which was delivered, but what was the message which was received. The party who originally sends an order by telegraph makes the telegraph company his agent for its transmission and delivery, and, as between himself and the person to whom it is addressed, he is bound by the message as delivered. It follows that where the legal rights of the receiver of the message founded upon an order transmitted therein are in question, he is entitled to put in evidence the message actually received as the original." Some seventeen years later and in 1907, The greater number of cases that have had occasion to consider the question of agency have arisen out of the introduction of evidence, or have in some way involved the question of either what constituted the original message or what was the best evidence. Cases dealing with the admission of evidence, or what constituted the best evidence, of the original message, are Saveland v. Green, supra; Durkee v. Vermont C. R. Co. 29 Vt. 127; Howley v. Whipple, 48 N. H. 487; Morgan v. People, 59 Ill. 58; Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355; Barons v. Brown, 25 Kan. 410; Matteson v. Noyes, 25 Ill. 591; Cairo & St. L. R. Co. v. Mahoney, 82 Ill. 73, 25 Am. Rep. 299; Williams v. Brickell, 37 Miss. 682, 75 Am. Dec. 88; State v. Hopkins, 50 Vt. 316, 3 Am. Crim. Rep. 357; Bond v. Hurd, 31 Mont. 314, 78 Pac. 579, 3 A. & E. Ann. Cas. 566. Joyce & Joyce issued the second edition of 2 Ga. App. 376, 58 S. E. 517. The Shotter their work on Electric Law, and in § 905 Case has been frequently cited and comreview the conclusion reached by the dif-mented on by the courts and text writers,ferent text writers as follows: "Mr. Gray sometimes with approval, sometimes with (Gray, Communication by Teleg. § 104, note doubts or express disapproval. 3) states the rule as holding nonagency of the telegraph company in England, and says that the rule here is contra, although he in clines to the English rule [see also Scott & J. Teleg. §§ 340, 341]. Judge Thompson (Thomp. Electricity, 1891 ed. §§ 483-487) holds to the rule which makes the sender who telegraphs a proposal bound by the terms of the message as delivered, on the ground of agency of the telegraph company. In other words, the sender must stand by the proposition embodied in the message as delivered by his agent, and sue the company for the damages he has sustained by its misfeasance; but he qualifies this by the rule that the party who first invites the use of the telegraphic agency impliedly undertakes to assume the risk of the telegraph company's mistakes. This author relies upon Ayer v. Western U. Teleg. Co. 79 Me. 493, 1 Am. St. Rep. 353, 10 Atl. 495; Western U. | Teleg. Co. v. Shotter, 71 Ga. 760; Dunning v. Roberts, 35 Barb. 463, and Durkee v. Vermont C. R. Co. 29 Vt. 127, 140. Mr. Croswell (Croswell, Electricity, 1895 ed. §§ 684687) notes substantially the English rule, and briefly considers the Georgia and Maine cases, and states no rule so far as we can discover." Joyce & Joyce state their conclusion, in § 907, as follows: "We must confess that we believe there can be no logical deduction from the various principles involved, as to what should be the rule. The determination must contain some element of what is called a "moral" ground, or must be an arbitrary, absolute one. We favor, however, the rulings in the Tennessee and Mississippi cases, but admit there is much force in Judge Thompson's conclusion, although that conclusion might have been in accord with the Tennessee and Mississippi cases, if he had had these cases before him." The American courts are by no means in harmony over this subject. Western U. Teleg. Co. v. Shotter, supra, decided in 1884, held unqualifiedly that the telegraph company is the agent of the sender of a message, and that if the message as actually delivered offers merchandise at a less price than the message as written by the sender offered, and the proposition is accepted, the sender is bound by the contract. This rule seems to have been uniformly adhered to by the Georgia courts. See Brooke v. Western U. Teleg. Co. 119 Ga. 695, 46 S. E. 826; Western U. Teleg. Co. v. Flint River Lumber Co. 114 Ga. 576, 88 Am. St. Rep. 36, 40 S. E. 815; Western U. Teleg. Co. v. Cooper, Pepper v. Western U. Teleg. Co. supra, decided by the supreme court of Tennessee in 1889, is perhaps the most widely cited, exhaustive, and well-considered American case to repudiate the doctrine that the company is the agent of the sender of the message. This case states the English rule, and reviews the American authorities, and indulges in some independent reasoning and consideration of the rule, and concludes that what is known as the American rule— that the company is the agent of the sender of a message really rests on the single case of Western U. Teleg. Co. v. Shotter, supra. The court concludes by repudiating the agency rule, and holds the company as an independent principal. In 1895 the supreme court of Mississippi was confronted with the same question, and in Shingleur v. Western U. Teleg. Co. 72 Miss. 1030, 30 L.R.A. 444, 48 Am. St. Rep. 604, 18 So. 425, cited, approved, and followed the Pepper Case, and held that a telegraph company is liable either to the sender or sendee of the message by reason of the delivery of an altered message to the send er in contract or tort, and to the sendee in tort. This case holds that the liability of a telegraph company for incorrectly transmitting a message, and thus delivering an incorrect copy of the original, is that of an "independent principal" to either the sender or sendee, whichever may be injured thereby. The Mississippi court calls attention to the Shotter Case, and declines to follow it. To same effect, see the later case of Western U. Teleg. Co. v. Potts, 120 Tenn. 37, 19 L.R.A. (N.S.) 479, 127 Am. St. Rep. 991, 113 | that there was a mistake in the telegram, S. W. 789. In 1901 the Kentucky court of appeals in Postal Teleg. Cable Co. v. Schaefer, 110 Ky. 907, 62 S. W. 1119, had under consideration the liability of the sender of a message to comply with the contract proposed by his message, where the message had been changed or altered in the transmission and delivered to the sendee in the changed form. The court reviews the authorities at some length, and then says: "This exact question was fully considered in the case of Pepper v. Western U. Teleg. Co. decided by the supreme court of Tennessee, and reported in 87 Tenn. 554, 4 L.R.A. 661, 10 Am. St. Rep. 699, 11 S. W. 783. In that case the court said, viz.: The minds of the party who sends a message in certain words, and the party who receives the message in entirely different words, have never met. Neither can, therefore, be bound the one to the other."" To the same effect, see Pegram v. Western U. Teleg. Co. 100 N. C. 28, 6 Am. St. Rep. 557, 6 S. E. 770. they were committing a fraud on the fruit company, and that the fruit company could have and should have recovered the full market price from Cornforth & Company. The case also inferentially holds that the fruit company could not waive its right to proceed against Cornforth & Company to collect the market value of the property, and thereby minimize the loss to all parties, and instead thereof sue the telegraph company for the difference, and allow the purchaser of the fruit "to get away with a fraudulently acquired advantage" in such a manner. That case turned upon the peculiar facts there involved, and contains no holding contrary to the general principal of law running through the cases heretofore considered. A consideration of this question of agency has been required, and its determination has been necessary, in order to ascertain whether the sender of a proposition to buy or sell is bound to the sendee, if his proposition is incorrectly deliverd. If the company is his agent, then, of course, he is and the sendee, if damaged by reason of the delivery of the changed or false message, would be relegated to his action in tort against the company for the wrong committed. If it should be conceded that the company is the agent of the sender of the message, that agency can in no sense extend to the change or alteration of the message. The agency would be special, and limited to the identical message authorized by the sender, and the sendee and everyone else has notice that the company has no authority from the sender to deliver to him or to any one else an altered or changed message, or one in any manner different from the one filed in the transmitting office. See foregoing quotation from Gray's note to text; Pegram v. Western U. Teleg. Co. supra. The case of Germain Fruit Co. v. West-bound by the contract whether the proposiern U. Teleg. Co. 137 Cal. 598, 59 L.R.A. tion be delivered as given or not, and in 575, 70 Pac. 658, is relied upon by respond- such case the sendee would have to look to ent as authority for the contention that the sender for any damages he might susStrong & Stark could recover the full mar- tain, while, if no agency exists, there would ket value of this property from the commis- be no meeting of minds and no contract in sion company, notwithstanding the mistake a case where the company changed or alin the telegram and that there was no meet-tered the message making the proposition, ing of the minds of the parties. In that case the plaintiff received a telegram from Cornforth & Company, of Denver, Colorado, asking for prices on oranges. The plaintiff thereupon sent the following message: "Offer Los Angeles, San Gabriel, Santa Anna oranges one fifty, Riversides two sixty." As received the message read: "Offer Los Angeles, San Gabriel, Santa Anna oranges one fifty, Riversides one sixty." Cornforth & Company immediately wired for two car loads of Riverside oranges, which were immediately shipped. After receiving the oranges they paid the fruit company "one sixty" per box, and refused to pay any more. The fruit company thereupon sued the telegraph company for the difference between the price quoted and that received under the altered message. The court cites no authorities, and does not consider the question of agency or whether there was a meeting of the minds of the contracting parties. That case turns wholly upon the finding of the trial court that Cornforth & Company knew that there was a mistake in the tele gram, and that Riverside oranges were at that time current on the market at $2.60 per box. The court held that Cornforth & Company were liable to the fruit company for the reasonable and market value of the fruit, which was $2.60, and that, knowing Our consideration of the authorities, and of the nature and character of the service rendered by a telegraph company, the public utility it serves, and the public character of its existence, and the franchise it enjoys,-all constrain us to hold that the law of agency is not applicable, and that the company cannot be properly held to be the agent of the sender of the message. A telegraph company should rather be treated as an independent principal or contracting party, and liable as other principals. These companies are in fact very similar to com mon carriers, and ought to be treated by the have reclaimed their property, they had still law as it deals with the common carrier. incurred a large expense which they must It is true, as said by many of the authori- necessarily take into consideration as pruties, that the company is not expected to dent and reasonable men, if they should have take the written message as delivered to it, refused to allow the commission company and transport it on the same sheet of pa- to retain the stock at $3.25 per hundred, per to the sendee, but that is not the test which the latter had promised and agreed and is an evasion of the real question. What to pay. Whatever damage and loss may the sender of a telegraphic message wants have been sustained by the sellers of this and expects is that the words, figures, or property on account of the transaction is characters of his message-not the paper directly traceable to the tort committed by containing them-shall be delivered to the the telegraph company in delivering to the sendee exactly as expressed by him, without commission company an altered and false change or alteration. He asks the com- message. As said by the court in Pepper pany to become the transmitter or carrier v. Western U. Teleg. Co. 87 Tenn. 571, 4 of the inquiry, proposition, news, or intel- L.R.A. 663, 10 Am. St. Rep. 699, 11 S. W. ligence contained in his message, and for783: “They [Strong & Stark] were bound this purpose makes the contract and pays to have taken just such steps as a reasonthe toll or rate established. This is the ably prudent man would take to save himservice of a common carrier. The only dif| self, had the mistake or error been his own. ference of any consequence which we can A man, under such circumstances, is not to discover is that the telegraph company is be held to have done the wisest and best not an absolute insurer of the literal accu- thing, but to the exercise of reasonable skill racy of delivery of every message under all and diligence. Whether he so acted or not is circumstances, yet in this the difference is a question of fact to be left to the jury not so great as was supposed twenty-five under proper instructions by the court." years ago. Indeed, the books disclose that The question would necessarily present ittelegraph companies were not held to any self to the sellers of the property the minute thing like the degree of accuracy a few they learned of this mistake and of the conyears ago as is now required of them, and dition under which the purchasers had acthis is at once apparent. Telegraphy had cepted the proposition, as to what was the not been developed and perfected then to best thing to do in order to minimize the anything like the exactness, either mechan- loss and damage,-whether it was better to ically or scientifically, that it is now. let the purchasers take the property at the price they had proposed to pay, and then look to the tort feasor (the telegraph company) for their damages, or to reclaim the property and seek another purchaser. It may have been impossible to reclaim the property, as it may have been used or consumed or so dissipated that it could not have been found or identified; or the expense of reclaiming it and securing another purchaser might have exceeded by far the difference between the price as named in the proposition and that named in the message as delivered by the telegraph company to the purchaser. Having determined that the telegraph company was not the agent of Strong & Stark, it follows that there was no meeting of the minds of the contracting parties as to the price for which the cattle were to be sold, and that Strong & Stark had a right to reclaim the same upon learning of the mistake made in the delivery of their proposition. They received a draft from White, the agent of the commission company, and shipped the cattle, and did not learn that any error had been made in the transmission and delivery of their message, until after the draft had been presented and the commission company had refused to pay any greater rate than $3.25 per hundred. While there is no evidence in the record which shows just where the cattle were or what had become of them at the time Strong & Stark received the information of this mistake and the refusal of the commission company to pay $3.95 per hundred, still it is apparent that they had already been shipped, and that they had very likely been received at the stock yards and perhaps sold, and possibly butchered. This, of course, is some- in the telegram delivered by Strong & Stark what conjectural from the present record. It is clear, however, that the freight rates and expense of shipping had already been incurred, and that if the shippers should These questions are all proper matters to be submitted to the jury in ascertaining the damage to be awarded. These phases of the question are very clearly and learnedly discussed and considered in the closing portion of the Pepper Case. See Hocutt v. Western U. Teleg. Co. 147 N. C. 186, 60 S. E. 980, and cases there cited. Since this case must go back for a new trial, it is proper to say here that the measure of damages is not the difference between the price proposed to the respondent, and that given in the message as deliverd to the live stock company. On the contrary, the measure of damages in this case would be the difference between |