The court said: "It is not barred merely because it was not brought within one year after the issuance of letters to the executors of the estate; that the section of the code, while it may, under some circumstances, prolong the time originally limited, cannot operate in any case to shorten it:" 50 Cal., 647.

The views herein expressed are in accordance with the decision of this court in Wick v. O'Neale, 2 Nev., 303, instead of in opposition to it, as claimed by appellant. There the court correctly construed section 23, so as to extend the time for the commencement of the action to one year from the time of the issuing of letters testamentary, in a case where the action would, under the other sections of the act, have been barred before that time.

Our former decision was s correct.

The judgment of the district court is affirmed.

HOFFMAN v. BOSCH.

Filed September 20, 1884.

BREACH OF WARRANTY OF TITLE-MEASURE OF DAMAGES.-The measure of damages in an action for breach of warranty of title to real estate is the value of the property at the time of sale, to be ascertained by the purchase price, with interest thereon, and reasonable costs, if any were expended in defense of the title by the plaintiff.

APPEAL from an order of the seventh judicial district court, Washoe county, granting plaintiff a new trial. The opinion states the facts.

Wm. Webster, for the appellant.

J. F. Alexander, for the respondent.

*

HAWLEY, C. J. Upon the trial of this action to recover damages for breach of warranty of title to real estate, the court gave the following instruction: "If the jury find that there has been a breach of warranty of the title to the real estate in question, * * the measure of damages is the value of the property at the time of sale, to be ascertained by the purchase money, with interest thereon, and reasonable costs, if any were expended in defense of title by plaintiff."

The jury found a verdict in favor of plaintiff for the sum of one hundred and fifty dollars. The court, upon motion of plaintiff, granted a new trial upon the ground that the jury in assessing the damages failed to determine the amount, from the testimony, upon the rules announced in the instruction.

The instruction stated the measure of damages correctly: Dalton v. Bowker, 8 Nev., 190, and it was the duty of the jury to have followed this instruction in assessing the damages. The verdict, as rendered, was not justified by the law or by the evidence.

From the undisputed testimony in the case, the plaintiff, if he recovered in the action, was entitled to a larger sum than was awarded him by the jury.

The order of the district court granting a new trial is affirmed.

SUPREME COURT OF CALIFORNIA.

No. 9.087.

HART v. WESTERN UNION TELEGRAPH COMPANY.

Department One. Filed September 18, 1884.

TELEGRAPH COMPANIES-MEASURE OF DAMAGES AGAINST.-A telegraph company is lia' le for whatever loss naturally and in the usual course of things follows from its failure to transmit a message promptly and correctly, although such message was written in cipher or was otherwise unintelligible to the company.

THE SAME STIPULATION LIMITING LIABILITY-NEGLIGENCE.-A stipulation printed on a blank upon which a telegraph message is sent, purporting to exempt the telegraph company from all liability for mistakes or delays in the transmission or delivery, or for non-delivery of any unrepeated message whether happening by the negligence of its servants or otherwise, beyond the amount received for sending the same, is void for want of consideration. Such company cannot stipulate against or limit its liability for mistakes happening in consequence of its own fault, such as want of proper skill or ordinary care on the part of its operators, or the use of defective instruments. Such company is exempt only for errors arising from causes beyond its control, and the burden of showing such exemption rests upon it, in an action to recover for an alleged loss.

THE SAME-EXEMPTION FROM LIABILITY--ATMOSPHERIC INFLUENCES.-A telegraph company is not liable for a loss arising from a mistake in the transmission of a message, when such mistake was occasioned by a break in the electric current, produced by atmospheric influences beyond the company's control.

APPEAL from a judgment of the superior court for San Joaquin county, entered in favor of the plaintiff, and from an order refusing the defendant a new trial. The opinion states the facts.

W. H. L. Barnes, for the appellant.

Byers & Elliott, for the respondent.

Ross, J. 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 "one hundred tons," and the word "bain means "two hundred and twenty-five tons.' As the message was delivered it directed McNear to buy for the account of the plaintiff two hundred and twenty-five tons of barley, whereas as it was written by the plaintiff, McNear was directed to buy on plaintiff's account one hundred tons only. Acting on the message received McNear bought for plaintiff two hundred tons of barley. When the plaintiff discovered that fact he notified the defendant that one hundred 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 one hundred tons being four hundred and twenty-nine dollars and eighty-two cents. 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 "repeated," is conceded by the plaintiff. It further appears in the case that no explanation of the meaning of the dispatch was made by the plaintiff at the time he delivered it to the defendant, for which reason, and because, as is claimed, the message under consideration was in cipher, appellant contends that the measure of damages is the price paid for the transmission of the telegram-in this case, thirty cents. In support of this point it is said by counsel that "the decisions of all the courts uniformly declare that unless the importance of the message is shown either by its own terms or by explanation made to the person receiving it in behalf of the telegraph company, no damages are recoverable for failure or delay in transmission beyond the price paid for that purpose."

In this, appellant's counsel is mistaken. The cases cited by him undoubtedly sustain the point he makes; and there are other cases to the same effect. Some of those decisions were based on messages which were in cipher, and others, messages which, though not in cipher, did not themselves disclose the extent or import of any transaction had in contemplation by the parties. In those cases substantial damages were refused because neither the messages nor other information given made known to the operator what was contemplated. Hence it was ruled that plaintiff could not recover of the telegraph company what, not understanding, it could not have contemplated as the effect of a miscarriage or other failure.

While not doubting the general rule that damages must be such as may be fairly supposed to have entered into the contemplation of the parties when they made the contract; that is, such as might be naturally expected to follow its violation, we do question and think

not sound the application of that rule as made in the class of cases to which allusion is above made.

Telegraph companies have conferred upon them by law certain privileges, among them the right of eminent domain, and they are charged with certain duties, among them the obligation to send promptly and correctly such messages as are intrusted to them. Of course, if illegibly written, the operator may reject a message; but if plainly written, his duty is to send it as written. Why has he the right to know what the message refers to? In what way would such knowledge aid him in the discharge of his duty to it send correctly? "One of the great attractions," say Scott and Jarnagin, in their treatise on the law of telegraphs, sec. 404, "which this mode of communication presents, is the brevity of the dispatch; such abbreviations being used in many cases as will enable the person for whom it is intended alone to understand it; and, hence, the vast amount of business the telegraph operator is capable of transacting in the transmission and delivery of messages. So that an explanation of the meaning, importance and bearing of each message would be an insufferable annoyance, and, in the multiplicity of messages delivered for transmission, could not be remembered, even if tho time could be spared to listen to it; and it would rarely afford any benefit or advantage to the company after the information was communicated." Proceeding, these writers say, and say correctly, that though the company, through its agents, may not know the meaning of the particular message, they do know that messages of great value and importance, involving heavy losses in case of failure, or delay, or mistake in their transmission, are constantly sent over their wires; and they do know that they hold themselves out to the public as prepared at all times, and for all persons, to transmit messages of this description. And the rule of damages, as applied to telegraph companies, is there deduced, which we think the true rule, namely, that, although the message be unintelligible to the company, yet as its undertaking was to transmit the message promptly and correctly, both parties contemplated that, whatever loss should naturally, and in the usual course of things, follow a violation of that obligation, the company should be responsible for. The same conclusion was reached by the supreme court of Alabama, in the case entitled, Doughtry v. The American Union Telegraph Co., decided in December, 1883, a note of which will be found at page 731, 46 American Reports, and by the court of appeals of Virginia, in the case of the Western Union Telegraph Co. v. Reynolds, 77 Va., 173; sce, also, Rittenhouse v. The Independent Line of Telegraph, 1 Daly, 474.

It is also contended on behalf of the defendant corporation that as the message in question was not "repeated" defendant is not responsible under any circumstances 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. There

are numerous cases that hold that such a rule on the part of the company is reasonable, valid and binding on the sender of the message. The cases that so hold are too numerous to be here referred to in detail. They will be found collated in a note to the case of the Western Union Telegraph Company v. Blanchard, reported in 45 American Reports, page 486. But there are many cases to the contrary, and the latter class we think based on the better reason. In the first place we agree with the supreme court of Illinois in the case of Tyler v. Western Union Telegraph Company, 68 Ill., 421, and S. C. 74 Ill., 170, where it is held that the regulation requiring messages to be repeated is not a contract binding in law, for the reason that the law imposed upon the company duties to be performed, for the performance of which it was entitled to a compensation fixed by itself, and which the sender had no choice but to pay; that among those duties was that of transmitting messages correctly; that the tariff paid was the consideration for the performance of this duty in each particular case and when the charges were paid the duty of the company began, and there was therefore no consideration for the supposed contract requiring the sender to repeat the message at an additional cost of fifty per cent. of the original charge. To the same effect is Bartlett v. Western Union Telegraph Company., 62 Me. 218, and Candee against the same company, 34 Wisconsin, 477, where the court say: "Aside from the objections resting on grounds of public policy, and which forbid the company from stipulating for immunity from the consequences of its own wrongful acts, it seems very clear to us that there can be no consideration for such stipulation on the part of the sender of the message, and that, so far as he is concerned, it is void for that reason, although exacted by the company and fully assented to by him. Either the company enters into a contract with him, and takes upon itself the burden of some sort of legal obligation to send the message, or it does not. It would be manifestly against reason and what all must assume to be the intention of the parties, to say that no contract whatever is made between them, and nobody, not even the officers or representatives of the company, asserts such a doctrine. It would seem utterly absurd to assert it. Holding itself out as ready and willing and able to perform the service for whosoever comes and pays the consideration itself had fixed and declared to be sufficient, and actually receiving such consideration, it cannot be denied, we think, that a legal obligation arises and duty exists on the part of the company to transmit the message with reasonable care and diligence, according to the request of the sender. Such being the attitude of the company, and the obligation which it assumes by accepting the payment, the question arising is, Whether it can at the same time, and as a part of the very act of creating the obligation, exact and receive from the other party to the contract a release from it? The regulations under consideration, if looked upon as reasonable and valid, completely nullify the contract by absolving the company from all obligation to perform it, and the party delivering the message gets nothing