
    NEWSOME v. TELEGRAPH COMPANY.
    (Filed March 21, 1905).
    
      Telegram, — Damages—Evidence.
    Where the plaintiff delivered to the defendant the following telegram : “Send by express four gallons of corn. Mint’s Siding. Rush. Raft hands”: and his name was changed by defendant in transmission, and the sendee did not send the whiskey, it was error to instruct the jury that the plaintiff could recover for expenses incurred in payment of his hands, and in sending to the telegraph and express offices, there being no evidence that the whiskey would have been sent if the error had not been made, nor that the defendant at the time of accepting the message had any notice of the purpose for which the whiskey was wanted, nor of the probable consequence of the failure to get it.
    ActioN by T. J. Newsome against tbe Western Union Telegraph Company, beard by Judge Gr. 8. Ferguson and a jury, at tbe May Term, 1904, of tbe Superior Court of Sampson County. From a judgment in favor of tbe plaintiff, tbe defendant appealed.
    No counsel for the plaintiff.
    
      R. C. Strong and F. H. Busbee & Son, for tbe defendant.
   Clark, C. J.

Tbe plaintiff delivered to defendant for transmission tbe following telegram: “Send by express four gallons of corn. Mint’s Siding. Rusb. Raft bands. T. J. Newsome.” Tbis message when delivered to sendee purported to be signed “T. J. Sessoms.” Tbe sendee not knowing any sucb party, did not send tbe whiskey. Tbis is an action for damages, tbe complaint alleging tbat tbe plaintiff bad accumulated timber and rosin at bis place of business to be rafted to Wilmington, on tbe first full fresbet (wbicb was then up) tbat raft bands would not work without whiskey, tbat by reason of failure to get it tbe bands refused to work, tbat tbe fresbet went down and before it rose again rosin had depreciated to plaintiff’s great loss; ,and besides, tbe plaintiff, in anticipation of getting tbe whiskey, drew drafts on faith of above stores to be shipped, wbicb stores not .arriving in Wilmington on that fresbet caused said drafts to be protested to damage of plaintiff’s credit and business standing. These damages were disallowed by tbe Court, doubtless because too remote and speculative, and tbe plaintiff is not appealing.

Tbe defendant excepted and appeals because tbe Court told tbe jury tbat plaintiff could recover whatever expense be incurred (in consequence of tbe error of defendant) in payment of bis bands and bis expense in sending to Clinton and Mint’s Siding. Tbis was error for two reasons: first, it did not appear in tbe evidence tbat tbe whiskey would have been sent if tbe message when received by sendee bad bad tbe plaintiff’s name properly signed thereto; nor does it appear tbat tbe defendant bad any express notice of the purpose for wbicb tbe whiskey was ordered and tbe probable consequences wbicb would result from its negligence, and tbe face of tbe message did not itself put the defendant on notice of sucb facts. Tbe words “four gallons corn” might possibly, as a local expression, have been understood by defendant’s agent to mean tbat quantity of whiskey, but there was no notice to defendant of tbe specific purpose for which the whiskey was needed nor of the probable consequences of failure to get it. The sendee, from the course of his dealings, might have understood the purpose for which the whiskey was to be used from the wording of the telegram, but there is no evidence that the defendant knew.

It is true it is in evidence that after the failure of the whiskey to arrive the plaintiff went to the defendant’s office and asked to have the telegram repeated or traced, tendering the money, and at the same time stated the purposes for which the whiskey was needed and his probable loss from its not being received. Failure of the defendant to do this as requested, was negligence, and it would be liable for any direct damage from failure to repeat or trace the telegram, but there is no evidence as to the amount of such damages, if any, and besides it is not shown that the whiskey would have been sent if the telegram had been repeated.

Error.  