It was said in Hunt v. Smith, 9 Kan. 137, that "whatever figures are used intending to represent money, such figures must, of course, be understood to represent 'dollars,' unless a different intention is clearly expressed. The point or dot, resembling a period, in punctuation, separating certain figures on the right from those on the left, is the decimal point. It makes the figures on the right decimals of a unit of whatever is intended to be expressed by those on the left. Those on the left, as we have already seen, are intended to represent dollars; hence those on the right must represent decimals of dollars." Applying this rule, the most that can be claimed of the abstract is that the judgment shown was too small. The abstract should have stated, debt, $102.12; costs, $73.20. Instead of this, it shows a judgment in plaintiff's favor for debt, 1.0212; costs, 7.3,20; that is, debt, one dollar and two hundred and twelve ten-thousandths dollars; costs, seven dollars and three hundred and twenty thousandths dollars, or $7.32. Therefore, while the abstract shows the judgment too small, it cannot, for that reason, or for the omission of the dollarmark, or other punctuation points, be called void or invalid. The alias execution of section 5, 1881, cannot now be declared void on the ground that the amount of the judgment and costs mentioned therein were at variance with the abstract of September 3, 1879, even if that were the only abstract filed, as there has been a levy, a sale, and a confirmation under the execution. Freem. Ex'ns, § 43; Hunt v. Loucks, 38 Cal. 372. The defendants in the execution have at no time attempted to set aside the execution, or alias execution, or sale, or any of the proceedings under the execution, and the question at this time is not what the district court would have done with the alias execution and sheriff's sale if the defendants in the original judgment had moved to set them, or either of them, aside, as they might have done. Therefore, even if the alias execution were irregular, it was voidable only, not void. Cross v. Knox, 32 Kan. 725; S. C. 5 PAC. REP. 32; Freem. Ex'ns, supra. If, however, the abstract filed October 17, 1879, be considered as an amendment or correction of the original abstract, then, as the alias execution followed that, said execution was not even irregular.

The next important question is whether the sheriff's deed, executed March 16, 1882, is prima facie evidence of the title in the grantee the plaintiff. As we have already held that the abstract of judgment filed September 3, 1879, was not void, and that it is too late after confirmation to challenge for irregularities the execution or alias execution, the plaintiff has a good title to the interest in the land claimed by him, if the sheriff's deed is valid upon its face. sheriff's deed reads as follows:

The

"Know all men by these presents, that whereas, Ambrose Dickens, on the sixteenth day of November, A. D. 1874, obtained a judgment before Daniel Rolfe, a justice of the peace of the township of Lexington, county of Johnson, and state of Kansas, against P. B. Crane and Samuel Crane, for the sum

of one hundred and two and 12-100 dollars, together with interest on said sum of money at the rate of 10 per cent. per annum from November 1, 1874, until paid, and also for the sum of seventy-three and 43-100 dollars, as costs therein expended; and whereas, on the third day of September, 1879, a transcript of said judgment was filed in the office of the clerk of the district court within and for the county of Johnson, state of Kansas; and whereas, on the seventeenth day of October, A. D. 1879, an amended transcript of said judgment was duly filed in said clerk's office; and whereas, on the sixth day of September, A. D. 1879, an execution was duly issued on said judgment, and delivered to the sheriff of said county on said day, and, for want of goods and chattels of said defendants, was duly levied by the sheriff of said county upon the lands and tenements hereinafter described, on the sixth day of September, A. D. 1879, which said lands and tenements were duly appraised and advertised, but were not sold for want of cash bidders, and said execution was afterwards, by said sheriff, duly returned, unsatisfied in whole or in part; and whereas, afterwards, to-wit, on the fifth day of December, A. D. 1881, an alias execution of that date was issued to the sheriff of Johnson county, Kansas, upon and in pursuance to said amended judgment, commanding him that of the goods and chattels of the said P. B. Crane and Samuel Crane he cause to be made the said judgment and costs aforesaid, and for want of goods and chattels he cause the same to be made of the lands and tenements of the said P. B. Crane and Samuel Crane, and that he have the same before the court aforesaid in sixty days from the date of said execution, and that he then and there certify how he executed the same," etc.

It is claimed that the deed is void upon its face because it shows that different executions were issued upon different abstracts. It is further claimed that the deed is void upon its face because the levy and appraisement under the first execution had never been set aside, and therefore that the sale upon the second levy and appraisement under the alias execution rendered the sale and all proceedings void. It is also claimed that the deed is void upon its face because it shows that the second abstract was filed on October 17, 1879, and that the alias execution was not issued until December 5, 1881; and it is contended that at that date the judgment was dormant, and therefore that the execution was improperly issued. None of the supposed defects render the deed invalid. The deed does not state different abstracts or different judgments. According to the deed, the abstract was filed September 3, 1879, and was amended October 17, 1879. As recited. in the deed, it does not appear that two separate and distinct abstracts were filed. On the other hand, it does appear that the second abstract was merely an amendment to the former. As the first abstract was not void, the execution thereon of September 6, 1879, was issued within less than five years from the rendition of the judgment, and this arrested the running of the statute. The alias execution was issued within less than five years from the date of the first execution, and therefore the judgment was not dormant when the alias was issued and the land sold. Any irregularities in the appraisement cannot now be brought into question, even by the defendants in the execution, much less in a collateral action by a stranger to it.

Finally, it is contended by the defendant that the evidence on the

part of the plaintiff shows that Samuel Crane, one of the persons under whom the plaintiff claims, was in the penitentiary of the state, serving out a sentence of five years, during the time a greater part of the proceedings under the judgment and abstracts were had, and that all the proceedings taken against him or his estate were absolutely void. The evidence does not sustain this statement. The judgment was rendered November 16, 1874. Crane was not sentenced to the penitentiary until November, 1877. The alias execution was issued December 5, 1881. The evidence shows that Samuel Crane must have been out of prison before the issuance of this execution, because, on December 27, 1880, he appeared before a notary public in Johnson county, in this state, and acknowledged a deed to one Millie Crane. Further than this, there is no special finding by the referee that Samuel Crane remained in the penitentiary during the term for which he was sentenced.

The judgment of the district court will be reversed, and the cause. remanded for further proceedings in accordance with the views herein expressed.

(All the justices concurring.)

SUPREME COURT OF CALIFORNIA.

(66 Cal. 579)

HART v. WESTERN UNION TEL. Co. (No. 9,089.)

Filed April 16, 1885.

1. TELEGRAPH COMPANIES-CARE REQUIRED.

Telegraph companies are not common carriers under the California statute, (Civil Code, §§ 2162, 2168,) and they are required to exercise "great care and diligence" in the transmission and delivery of messages, which degree of care imports the employment of proper instruments and comp tent operators. 2. SAME-LIMITING LIABILITY BY STIPULATION-BURDEN OF PROOF.

A regulation of a telegraph company that it will not be liable beyond the sum received for sending a message, for any injury by reason of any mistake or delay in the transmission or delivery of the message, or for failure to deliver the same, unless the sender orders the message to be repeated by sending it back to the office which first received it, paying therefor half the regular rate additional, is a reasonable precaution to be taken by such company, and binds one who assents to it so as to exempt the company from any liability beyond the sum paid for sending it, except where the mistake or delay is the result of willful misconduct or gross negligence on the part of the company The burden of proof in an action for damages for failure to properly transmit a message sent subject to such condition, and which was not repeated, is on the plaintiff, to establish willful misconduct or gross negligence on the part of the company, where the plaintiff seeks to recover more than the sum paid for sending a mes

sage.

In bank. Appeal from the superior court of San Joaquin county. The opinion in department is reported in 4 PAC. REP. 657.

W. H. L. Barnes, for appellant.

Byers & Elliot, for respondent.
Ross, J.

Further consideration has convinced us that some of the views expressed when this case was considered in department should be modified, and the rulings in some respects changed. The case is this:

On the fifteenth day of December, 1882, the plaintiff delivered to the defendant, at its Stockton office, this message:

"George W. McNear, San Francisco: Buy bail barley falun; report by mail. "GEORGE HART."

The message was promptly transmitted and delivered as written, except that the word "bail" was changed to the word "bain." By the private cipher code of McNear, used by the plaintiff in the message, the word "bail" means "100 tons," and the word "bain" means "225 tons." As the message was delivered, it directed McNear to buy for the account of the plaintiff 225 tons of barley, whereas, as it was written by the plaintiff, McNear was directed to buy on plaintiff's account 100 tons only. Acting on the message received, McNear bought for plaintiff 225 tons of barley. When the plaintiff discovered that fact he notified the defendant that 100 tons had been bought in excess of that directed to be bought by the original message, and

asked the defendant what he should do with the surplus so purchased. Defendant refused to give any instruction in regard to it. Plaintiff thereupon sold the barley at the highest market rate, his loss on the extra 100 tons being $429.82. It is for the loss thus sustained by him that the action is brought.

At the trial, the only proof given by the plaintiff to show negligence on the part of the defendant was the admitted fact that the message was delivered in its altered form. It was also admitted that the message was written by the plaintiff upon a printed form prepared by the defendant, underneath the words, "Send the following message, subject to the above terms, which are hereby agreed to," and that among the "above terms" referred to are the following:

“To guard against mistakes or delays, the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for non-delivery, of any repeated message, beyond fifty times the sum received for sending the same, unless specially insured; nor in any case for delays arising from unavoidable interruptions in the working of its lines, or for errors in cipher or obscure messages."

That the message in question was not directed to be "repeated" is conceded by the plaintiff; and on the part of the appellant it is contended that, as the message was not repeated, appellant is not responsible in damages beyond the amount received for its transmission; and this because it is so declared in the conditions printed at the head of the form upon which the dispatch was written, and to which, as is claimed, the plaintiff assented. In department we held that telegraph companies are exempt only for errors arising from causes beyond their own control. In the first place, this rule would. extend the liability of such companies beyond that declared by statute in this state. Originally, section 2162 of the Civil Code read:

"A carrier of messages for reward must use great care and diligence in the transmission and delivery of messages. A carrier by telegraph must use the utmost diligence therein."

And section 2168 of the same Code originally read:

"Every one who offers to the public to carry persons, property, or messages is a common carrier of whatever he thus offers to carry.'

But in 1874 these sections were amended, and made to read as follows:

"Sec. 2162. A carrier of messages for reward must use great care and diligence in the transmission and delivery of messages.

"Sec. 2168. Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.”