permitted it to be sold; and that, in view of this and the further fact that the cap could have been removed and put back while in the possession of the retailer and without his knowledge, it could not rightfully be assumed that the glass was in the bottle at the time it was sold by the manufacturer. In the following additional cases, it was apparently assumed that, from the presence of glass in a bottled beverage, the bottling company might be found guilty of negligence: Watson v. Augusta Brewing Co. (1905) 124 Ga. 121, 1 L.R.A. (N.S.) 1178, 110 Am. St. Rep. 157, 52 S. E. 152, 19 Am. Neg. Rep. 107 (glass in bottled soda water, bottled by defendant and purchased by plaintiff from retailer; judgment for defendant being reversed); Jackson Coca-Cola Bottling Co. v. Grubbs (1926) — Miss. —, 108 So. 732 (broken glass in bottled Coca-cola, alleged to have been bottled by defendant and purchased by plaintiff from retailer; judgment for plaintiff being reversed solely upon the ground that plaintiff had failed to discharge burden of showing beverage was manufactured and bottled by defendant-a question beyond the scope of the present annotation). Mouse in bottled beverage. See Jackson Coca-Cola Bottling Co. v. Chapman (1914) 106 Miss. 864, 64 So. 791, as set out on p. 1560 of the earlier annotation in 4 A.L.R. The presence of a mouse in a bottle of Coca-cola purchased from a retailer presented a jury question as to the negligence of the bottling company in failing to use due care in seeing to it that the beverage was fit for human consumption, notwithstanding testimony tending to show that the bottling plant was up-to-date and that it was operated in a skilful manner. CocaCola Bottling Co. v. Barksdale (1920) 17 Ala. App. 606, 88 So. 36 (judgment for plaintiff affirmed). It was said that the testimony referred to presented a conflict of evidence for the determination of the jury. And it has been said, obiter, that notwithstanding the care shown in the bottling plant, the court could not say as a matter of law that a mouse in a bottle of Coca-cola purchased from a retailer did not get into the bottle during the process of manufacture, since it was impossible for the mouse to get into the bottle after it was corked up; but that the jury would be justified in inferring and finding that some of the things usually done in the bottler's method of preventing foreign substances getting into the bottles were not done; or, in other words, it would be for the jury to determine which was the more reasonable probability. Davis v. Van Camp Packing Co. (1920) 189 Iowa, 775, 17 A.L.R. 649, 176 N. W. 382. In the following additional cases, it was apparently assumed that, from the presence of a mouse in a bottled beverage, the bottling company might be found guilty of negligence; Bellingrath v. Anderson (1919) 203 Ala. 62, 82 So. 22 (mouse in bottle of Coca-cola bottled by defendant and purchased by plaintiff from retailer; judgment for plaintiff affirmed); Martin v. Waycross Coca-Cola Bottling Co. (1916) 18 Ga. App. 226, 89 S. E. 495 (mouse in bottle of Coca-cola bottled by defendant and purchased by plaintiff from retailer; nonsuit and judgment for defendant reversed); Crigger v. CocaCola Bottling Co. (1915) 132 Tenn. 545, L.R.A.1916B, 877, 179 S. W. 155, Ann. Cas. 1917B, 572, 11 N. C. C. A. 359 (mouse in bottle of Coca-cola bottled by defendant and purchased by plaintiff from retailer; the court saying that, if in the light of the finding by the jury it were fairly inferable that the mouse was bottled up at the bottling plant, it would consider it its duty to reverse a judgment for defendant, since proper inspection would have disclosed the mouse, even though it got into the bottle by some unavoidable accident. In view of the care shown to exist at the bottling plant, and the fact that there was opportunity for malevolent persons to open the bottle and put the mouse into it,-a theory of defendant suggested to the jury, the court, however, refused to disturb a verdict for defendant, saying that there were sufficient inferences that might be drawn from the facts to support the jury's finding of no negligence on the part of the defendant). Spider in bottled beverage. See Jackson Coca-Cola Bottling Co. v. Renna (1923) Miss. 97 So. 674 (partially decomposed spider in bottle of Coca-cola bottled by defendant and purchased by plaintiff from retailer; judgment for plaintiff affirmed with remittitur, the question under consideration herein not being discussed). Suspender strap in bottled beverage. Evidence that the plaintiff purchased a bottle of Coca-cola in a retail store, the keeper of which opened the bottle for her, and that, after drinking some of the contents through a straw, she discovered a piece of leather strap (part of a suspender) floating therein, presented a jury question as to the WESTERN UNION TELEGRAPH COMPANY, Plff. in Err., (114 Okla. 161, 245 Pac. 39.) Contracts, § 105 by telegraph -when effected. 1. Contracts may be negotiated by telegraph, and, when an offer is made by telegraph, an acceptance thereof in the same manner takes effect when the telegram containing the acceptance is deposited for transmission in the telegraph office, and not when it is received by the other party. [See annotation on this question beginning on page 159.] Telegraphs, § 20 failure to deliver message liability. 2. Where A. C. & Co. telegraphed W., offering a specified price for cotton, and W. accepted such offer by telegraph, and shipped the cotton, and drew a draft on A. C. & Co. for the price thereof, which draft was paid, and afterward it was discovered that W.'s telegram of acceptance was not delivered, and A. C. & Co. sold said cotton for less than the price paid, and Headnotes by NICHOLSON, Ch. J. W. voluntarily reimbursed A. C. & Co. for the difference between the price paid him and the price at which the cotton was sold, W. cannot recover from the telegraph company the amount he repaid A. C. & Co., as it was his voluntary act in making such payment, and not the failure to deliver his telegram, which was the proximate cause of his injury. [See 26 R. C. L. 585.] ERROR to the District Court for Sequoyah County (Parks, J.) to review a judgment in favor of plaintiff in an action brought to recover damages for alleged failure of defendant to transmit and deliver two telegrams. Reversed. The facts are stated in the opinion of the court. (114 Okla. 161, 245 Pac. 39.) Messrs. Francis R. Stark, Joseph L. Egan, Keaton, Wells, & Johnston, and Ramsey, de Meules, & Martin, for plaintiff in error: The contracts between plaintiff and Anderson & Clayton for the sale of 50 bales of cotton on September 13, 1920, and 100 bales on October 20, 1920, were fully consummated upon the delivery by him to the Western Union of his telegrams to Anderson & Clayton, regardless of whether the telegrams were ever received by them. Their failure to receive the telegrams was not, therefore, the legal or efficient cause of plaintiff's damage. Farmers' Produce Co. v. McAlester Storage & Commission Co. 48 Okla. 488, L.R.A.1916A, 1297, 150 Pac. 483; Farmers' Produce Co. v. Central Fruit & Produce Co. 48 Okla. 754, 150 Pac. 664; Lucas v. Western U. Teleg. Co. 131 Iowa, 669, 6 L.R.A. (N.S.) 1017, 109 N. W. 191; Minnesota Linseed Oil Co. v. Collier White-Lead Co. 4 Dill. 431, Fed. Cas. No. 9,635; Garrettson v. North Atchison Bank (C. C.) 47 Fed. 867, affirmed in 2 C. C. A. 145, 4 U. S. App. 557, 51 Fed. 168; Andrews v. Schrieber (C. C.) 93 Fed. 367, affirmed in 41 C. C. A. 663, 101 Fed. 763; Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511; Kennedy Mercantile Co. v. Western U. Teleg. Co. Tex. Civ. App. 167 S. W. 1094; 1 Page, Contr. § 52; 1 Beach, Contr. § 63; Western U. Teleg. Co. v. Fletcher, Tex. Civ. App. —, 208 S. W. 748; Weld v. Victory Mfg. Co. (D. C.) 205 Fed. 770; Western U. Teleg. Co. v. Allen, 30 Okla. 229, 38 L.R.A. (N.S.) 348, 119 Pac. 981. Plaintiff's voluntary abandonment of his sale to Anderson & Clayton was the legal or efficient cause of his damage, and not the failure of the defendant to deliver the telegrams. McKee V. Western U. Teleg. Co. 158 Gilead Cotton Oil Co. v. Western U. Nicholson, Ch. J., delivered the opinion of the court: During the months of September and October, 1920, and prior and subsequent thereto, J. Perry Wheeler was the lessee of a round bale cotton gin at Sallisaw, belonging to Anderson, Clayton & Co., and by the terms of a contract between them Anderson, Clayton & Co. agreed to purchase all round bale cotton ginned by him, and to quote the price by telegraph from day to day that they Wheeler elected to sell at the price were willing to pay for the same. If quoted, he was to telegraph Anderson, Clayton & Co., before 8 o'clock P. M. of the day of sale the number of bales sold, and ship the cotton to their warehouse at Houston, Tex., and draw a sight draft on them for the purchase price thereof. In accordance with this contract, Anderson, Clayton & Co., on September 13, 1920, sent Wheeler a telegram over the lines of the Western Union Telegraph Company offering him 29 cents per pound for cotton that day, to which he replied by Western Union telegram before 8 o'clock P. M. of that day accepting the offer, and advising Anderson, Clayton & Co. that he was selling them 50 bales that day, and accordingly shipped said cotton to them at Houston, Tex., and drew a draft on them for the purchase price, as quoted in their wire of that day, which draft was paid by them. On October 6, 1920, Anderson, Clayton & Co. sent Wheeler a Western Union telegram offering him 22 cents per pound for cotton that day, to which plaintiff replied by Western Union telegram, delivered to the telegraph company before 8 o'clock P. M., accepting the offer, and advising Anderson, Clayton & Co. that he was selling them 100 bales that day, and shipped said cotton to Anderson, Clayton & Co. at Houston, Tex., and drew a draft on them for the purchase price thereof, which draft was paid by them. Neither of Wheeler's telegrams were delivered to Anderson, Clayton & Co. Thereafter the market price of cotton declined, and, upon the discovery that said telegrams had not been delivered to Anderson, Clayton & Co., a controversy arose between them and Wheeler as to whom the 150 bales of cotton belonged to, which controversy ended on October 29, 1920, by Wheeler voluntarily agreeing to accept payment for the cotton at the market price that day, which was 20.40 cents per pound. Anderson, Clayton & Co. drew a draft on Wheeler for the amount of the difference between the prices quoted on September 13th and October 6th, and the market price on October 29th, which draft was paid by him, whereupon whereupon Wheeler brought this action against the Western Union Telegraph Company to recover the sum of $1,587, the loss sustained by him, and from a judgment in his favor the company has appealed. It will be observed that all negotiations and communications between Wheeler and Anderson, Clayton & Co., pertaining to the purchase and sale of the cotton were conducted by telegraph. Anderson, Clayton & Co. proposed to pay Wheeler a definite amount for the cotton, and he accepted their offer unconditionally. By § 5006, Comp. Stat. 1921, it is provided: "If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted;" and § 5007, id., provides: "Consent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to the last section." It is well settled by the authorities that contracts may be negotiated by telegraph, and that, when an offer is made by telegraph, an acceptance thereof in the same manner takes effect when the telegram containing the Contracts-by telegraphwhen effected. acceptance is deposited for transmission in the telegraph office, and not when it is received by the other party. Beach, Contr. § 63; Minnesota Linseed Oil Co. v. Collier White Lead Co. 4 Dill. 431, Fed. Cas. No. 9,635; North Atchison Bank v. Garretson, 2 C. C. A. 145, 4 U. S. App. 557, 51 Fed. 168; Schreiber v. Andrews, 41 C. C. A. 663, 101 Fed. 763; Stephen M. Weld & Co. v. Victory Mfg. Co. (D. C.) 205 Fed. 770; Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511; Kenedy Mercantile Co. v. Western U. Teleg. Co. - Tex. Civ. App., 167 S. W. 1094; Western U. Teleg. Co. v. Fletcher, Tex. Civ. App., 208 S. W. 748. See also Farmers' Produce Co. v. McAlester Storage & Commission Co. 48 Okla. 488, L.R.A.1916A, 1297, 150 Pac. 483. Therefore, as soon as Wheeler delivered to the telegraph company for transmission his telegram accepting the offer for his cotton, the contract of sale was complete. He thereby became bound to sell, and the company bound to buy, at the price mentioned. It was immaterial to him whether his telegram was delivered to the company or not. The company had selected its agency for the receipt, transmission, and delivery of his acceptance, and, having delivered his acceptance to that agency, he did all that was required of him. Furthermore, this contract was fully performed by the parties in that Wheeler shipped the cotton to Anderson, Clayton & Co., and they accepted the same and paid therefor. The fact that Wheeler afterwards voluntarily relinquished his rights under the contract and reimbursed Anderson, Clayton & Co. for their loss, if Telegraphsany, on the cotton failure to deliv does not give rise er message—liato a cause of action against the telegraph company, as it was his voluntary act in paying Anderson, Clayton & Co., and not the failure to deliver his telegram, which was the proximate cause of his injury. McKee v. Western U. Teleg. Co. 158 Ky. 143, 51 L.R.A. (N.S.) 439, 164 S. W. bility. (114 Okla. 161, 245 Pac. 39.) 348: Shingleur v. Western U. Teleg. Co. 72 Miss. 1030, 30 L.R.A. 444, 48 Am. St. Rep. 604, 18 So. 425; Mt. Gilead Cotton Oil Co. v. Western U. Teleg. Co. 171 N. C. 705, 89 S. E. 21; Western U. Teleg. Co. v. Southwick, Tex. Civ. App. —, 214 S. W. 987. the cause remanded, with direcThe judgment is reversed and tions to render judgment in favor of the plaintiff in error. All the Justices concur, except Harrison and Clark, JJ., absent and not participating. ANNOTATION. Time and place of consummation of contract on acceptance by telegraph of offer. [Contracts, § 105.] I. Time of consummation of contract: a. In general, 159. b. Effect of offer by mail, 164. c. Effect of stipulation or understanding, 165. II. Place of consummation of contract, 166. 1. Time of consummation of contract. a. In general. Contracts entered into by telegraph are governed by the same rules as contracts negotiated by correspondence through the postoffice. When the telegraph is employed, the contract is concluded when an acceptance of a proposition is deposited in the telegraph office for transmission. United States. Burton v. United States (1906) 202 U. S. 344, 50 L. ed. 1057, 26 Sup. Ct. Rep. 688, 6 Ann. Cas. 362; Minnesota Linseed Oil Co. v. Collier White Lead Co. (1876) 4 Dill. 431, Fed. Cas. No. 9,635; Andrews v. Schreiber (1899) 93 Fed. 369, affirmed in (1900) 41 C. C. A. 663, 101 Fed. 763. Illinois. Cobb v. Foree (1890) 38 Ill. App. 255. Kentucky. Calhoun v. Atchison (1868) 4 Bush, 261, 96 Am. Dec. 299; C. W. Craig & Co. v. Thomas S. Jones & Co. (1923) 200 Ky. 113, 252 S. W. 574. New Jersey. See Hallock v. Commercial Ins. Co. (1857) 26 N. J. L. 268. New York.-Trevor v. Wood (1867) 36 N. Y. 307, 93 Am. Dec. 511; Schonberg v. Cheney (1875) 3 Hun, 677; Chesebrough v. Western U. Teleg. Co. (1912) 76 Misc. 516, 135 N. Y. Supp. 583, affirmed without opinion in (1913) 157 App. Div. 914, 142 N. Y. Supp. 1112. See also Stein-Gray Drug Co. v. H. Michelsen Co. (1908) 116 N. Y. Supp. 789. Oklahoma. See Western U. Teleg. Co. v. Allen (1911) 30 Okla. 229, 38 L.R.A. (N.S.) 348, 119 Pac. 981; Farmers' Produce Co. v. McAlester Storage & Commission Co. (1915) 48 Okla. 488, L.R.A.1916A, 1297, 150 Pac. 483. See also the reported case (WESTERN U. TELEG. Co. v. WHEELER, ante, 156). Oregon. Williams v. Burdick (1912) 63 Or. 41, 125 Pac. 844, rehearing denied in (1912) 63 Or. 49, 126 Pac. 603. Pennsylvania. Cosgrove v. Woodward (1912) 49 Pa. Super. Ct. 228. Texas. Western U. Teleg. Co. v. Davis (1896) Tex. Civ. App. 35 S. W. 190; Western U. Teleg. Co. v. E. F. Connell Land Co. (1910) 61 Tex. Civ. App. 168, 128 S. W. 1162; Kennedy Mercantile Co. v. Western U. Teleg. Co. (1914) Tex. Civ. App. —, 167 S. W. 1094; Western U. Teleg. Co. v. Fletcher (1919) Tex. Civ. App. 208 S. W. 748. - |