
    [No. 14039.
    
      En Banc.
    
    May 11, 1918.]
    M. G. Bentley, Respondent, v. Western Union Telegraph Company, Appellant.
      
    
    Telegraphs and Telephones — Mistake in Tbansmission—Damages—Proximate Cause. Where, through the mistake of a telegraph company, apples shipped from Oregon to California were delivered to the consignee by the consignor’s agent at $1.08 per box, instead of $1.80, in reliance upon an erroneous message, and the mistake of the telegraph company was the proximate cause of the consignor’s loss, it was not the duty of the consignor to mitigate his damages by the acceptance of a prompt tentative offer by the consignee to settle for the apples at $1.50 per box; since that would have made a new contract and waived his claim against the telegraph company; and the measure of his damages is the difference between the price received by him on the completed sale at $1.08, and the fair market value of the apples (overruling on rehearing, Id., 98 Wash. 431; Fullerton, Mount, and Chadwick, JJ„ dissenting).
    Appeal from a judgment of tlie superior court for Walla Walla county, Mills, J., entered July 17, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages.
    Affirmed.
    
      Gose & Crowe, for appellant.
    
      Sharpstein, Smith & Sharpstein, for respondent.
    
      
      Reported in 172 Pac. 1172.
    
   On Rehearing.

Holcomb, J.

A rehearing En Banc was granted in this case from the decision heretofore made and reported in 98 Wash. 431, 167 Pac. 1127.

The facts at issue and the legal propositions involved are sufficiently stated in the former prevailing opinion and the dissenting opinion {herein, and no amplification is necessary now. For the reasons stated in the dissenting opinion, which the majority of the court now adopt as the correct view of the law and of the disposition of the case, the former opinion is overruled and the verdict and judgment affirmed.

Ellis, C. J., Webster, Main, and Parker, JJ., concur.

Fullerton, Mount, and Chadwick, JJ., dissent.  