an office of the company in another city closes.' On the contrary, it is an obvious suggestion that, in any properly regulated telegraph system, the offices would be classified, and there would be a uniform time established for the closing of those of each class, of which time every agent receiving dispatches would be apprised. It is probable that there is not a receiving agent in the postal telegraph service of France or Germany that does not know the hour of closing of every office in the republic or empire. If such an agent receives an urgent dispatch after the office to which it is to be sent is closed for the day, and, nevertheless, undertakes to get it through, this may of itself be evidence of negligence. Where the action was for the penalty given by a statute' for failing properly to transmit messages during the usual office hours," and it appeared that the message was received within office hours, and promptly transmitted to another office, where it was not delivered until noon the next day, it was held that the company was not liable, provided the office hours at the last named office were reasonable.

301. What Excuses Insufficient.-It has been held no excuse for delay in transmitting a message that an agent at an intermediate point was in doubt as to its proper destination, the message being addressed to "Wallace" instead of "Wallis," there being no place in the State of the former name, if he knew of the existence of the latter town, and failed to send it to that point. If, in such a case, the error in the name was chargeable to the agent

1 Given v. Western Union Tel. Co., 24 Fed. Rep. 119.

2 Ind. Rev. Stat. 1881, § 4176.

3 Western Union Tel. Co. v. Harding, 103 Ind. 505 (Howk, J., dissen).

who received the message from the sender, the company would be liable for his negligence, and regardless of the diligence used by the agent at the intermediate office to discover the correct destination.'

§ 302. Whether Plaintiff Injured by the Delay a Question for the Jury.-Whether the plaintiff was injured by the delay, and, if so, to what extent, is always a question of fact for the jury, but always with the proviso that there is evidence tending to show such injury. It was in this sense that one court held that where the message summoned a physician to a patient, it was for the jury to determine whether the patient was injured by the delay, and whether the result would have been different had the dispatch been delivered.' Thus, where the message contained information of the probable death of plaintiff's wife, and the only means by which, if the dispatch had been duly delivered, the plaintiff could have arrived before her death was by a train which passed at a distance of fifteen miles from the point to which the message should have been sent, within two hours and fifteen minutes after the earliest time at which he could have received the message, it was for the jury to decide whether he could have reached her while living, and therefore whether he was injured by the delay." § 303. udicial.-Unless the action is for a statutory penalty," there can, of course, be no recovery of damages unless the delay is shown to have been injurious to

No Recovery of Damages unless Delay Prej

1 Beasley v. Western Union Tel. Co., 39 Fed. Rep. 181.

2 Brown v. Western Union Tel. Co. (Utah), 21 Pac. Rep. 988. Beasley v. Western Union Tel. Co., 39 Fed. Rep. 181.

Ante, § 158, et seq.

the plaintiff in a legal sense. Thus, it has been held that a delay of six hours, in delivering a message announcing that the sender would be there that evening to attend the funeral of his mother, did not entitle him to recover damages, where it appeared that he could not have arrived in any event in time to attend the funeral unless it was postponed, and those in charge received the message before it took place, and did not see fit to postpone it. So, where the action was for the failure to deliver a message summoning a physician to attend the plaintiff's wife, it was held that the plaintiff could not recover damages, in the absence of evidence tending to show that her life might have been saved had the message been promptly delivered. Possibly another decision may be referred to the same principle, where it was held that a telegraph company is not liable for loss resulting from delay in the delivery of a message relative to an advance in the price of cotton, when it appears that the message was the voluntary act of a third party under no obligation to send it, and having no connection with the cotton in question."

§ 304. Delay by Changing Route in Consequence of Bad Weather.- Where the condition of the weather prevented the company from sending a message by the usual and most direct route, it is not chargeable with negligence by sending the next best

available route.*

1 Western Union Tel. Co. v. Andrews, 78 Tex. 305; s. C., 14 S. W.

Rep. 641.

2 Western Union Tel. Co. v. Kendzora, 77 Tex. 257; s. c., 13 S. W.

Rep. 986.

3 Frazer v. Western Union Tel. Co., 84 Ala. 497; s. C., 4 South. Rep.

4 Beasley v. Western Union Tel. Co., 39 Fed. Rep. 181.

310. The Measure of Damages Governed by General Rules. 311. Rule in Hadley v. Baxendale: Damages in Contemplation of the Parties.

312. That Rule as Explained in a Leading Case in New York.

313. Special Circumstances must be Communicated to the Company. 314. English Case in Illustration of the Rule.

315. Agents who Receive Dispatches for Transmission are Agents to Receive Such Information.

316. Conclusions Flowing from these Rules.

§ 310. The Measure of Damages Governed by General Rules.-The measure of damages, in actions against telegraph companies for failing in the performance of the duties which they undertake, is one of the most difficult of questions arising with reference to this agency, owing to the peculiar nature

of the undertaking. The general rule is that a telegraph company, receiving a message for immediate transmission and delivery, is bound to use ordinary care in endeavoring to make such delivery as nearly immediate as practicable; and, upon failure to do so, will be liable to the sender for such actual damage in loss of time, traveling expenses, etc., not exceeding the amount sued for, as he may be found to have sustained in consequence of the delay in delivering of the message.'

§ 311. Rule in Hadley v. Baxendale : Damages in Contemplation of the Parties.—American judicial authority is generally, though not universally agreed, that the rule of damages to be applied in such actions is that laid down in the leading English case of Hadley v. Baxendale. In that celebrated case it appeared that the plaintiffs, owners of a steam-mill, broke a shaft, and, desiring to have another made, left the broken shaft with the defendant, a carrier, to take to an engineer to serve as a model for a new one. At the time of making the contract the defendant's clerk was informed that the mill was stopped, and that the plaintiffs desired the broken shaft to be sent immediately. Its delivery was delayed, however, and the new shaft kept back in consequence. The plaintiffs brought their action for a breach of this contract with the carrier, and they claimed, as special damages, the loss of profits while the mill was kept idle. But, because it was not made to appear that the defendant was informed that the want of the shaft was the only thing that was keeping the mill from

1 Bliss v. Baltimore, etc. Tel. Co., 30 Mo. App. 103. 29 Exch. 341; s. c., 26 Eng. Law & Eq. 398.