(1913) 73 Wash. 260, 46 L.R.A. (N.S.) 412, 131 Pac. 812, it was held that a sheep buyer, receiving a quotation of prices by telegram, which, as erroneously transmitted, indicated that the price would be $4.20 (instead of $4.70, as it should have read) per hundred weight January 1st, and $5 February 1st, was not as a matter of law chargeable with notice that there was error in the January price, even though, previously to the receipt of this telegram, he had received a telegram in which the January price had been quoted as $4.70, and notwithstanding the apparent wide discrepancy between the January price and the February price as stated in the message. The court, referring to the fact that the buyer had fused to purchase at the prices stated in the prior telegram, was evidently of the opinion that the buyer, upon receipt of the erroneous telegram, would assume, as an ordinarily prudent man, that his purchasing agent, the sender of the telegram, fortified by the refusal to consider the price telegram, had succeeded in reducing the offer to what the evidence shows was about the market price for January delivery.

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One who received a telegram, dated the day before, giving information of an advance in the price of a commodity, and a few hours subsequently received another message, bearing the date of the day it was received, giving information of the restoration of the old price of the commodity, and by mistake of the telegraph company, at about midnight of the same day, received a duplicate of the first message, which he acted upon as an original message, although the word "Dup." appeared in two places on the telegram, and the duplicate bore date of the day the first telegram was sent, was not guilty of such contributory negligence as to defeat a recovery for the damages he suffered in relying upon the duplicate as an original, particularly in view of the fact that the action of the association fixing the price of the commodity had been vacillating. Western U. Teleg. Co. v. Virginia Paper Co. (1891) 87

Va. 418, 12 S. E. 755. The evidence showed that no order for a duplicate had ever been given by the sendee, and that the officers or agents of the sendee did not know the meaning of the abbreviation.

In Western U. Teleg. Co. v. Chambers (1903) 34 Tex. Civ. App. 17, 77 S. W. 273, where a father received a message from his son, son, incorrectly stating, as transmitted by the telegraph company, that the sender's "father" was dead, when as a matter of fact the message, as transmitted for delivery to the telegraph company by the sender, stated that "Arthur," another son of the sendee, was dead, and the father later received another telegram, requesting an answer, the court held that, in view of the fact that the sender of the telegram had a father-in-law to whom he generally referred as "father," and the sendee's testimony that he was of the impression, when he answered the telegram requesting an answer, that it was the father-in-law to whose demise the original telegram referred, although he was suspicious that there might be a mistake in the message in some way, such testimony did not warrant a finding as a matter of law that the sendee knew about the mistake from the start, or that he knew it when he replied to the request for an answer, and in which answer he stated that he could not come.

And one who received a telegram incorrectly reading: "Car very sick. Sroup and sore throat. Can you come?" when the correct message, as actually delivered to the telegraph company by the sender for transmission, read: "Ira very sick. Croup and sore throat. Can you come?" and who was informed from the relay office that the message as delivered to him was correct, was held, in Efird v. Western U. Teleg. Co. (1903) 132 N. C. 267, 43 S. E. 825, not guilty of contributory negligence in acting upon the assumption that the word "Car," as used in the incorrectly transmitted telegram, referred to his nephew, Carl, who had associated with the sendee's children after they had had scarlet fever, from which

fact the sendee might naturally infer that it was the nephew who was ill.

One who received a telegraph message sent from Staten island, but appearing to have been sent from South Carolina, and went to the telegraph office to make inquiry, and found it closed, and was misled into taking a fruitless trip to South Carolina, is not as matter of law chargeable with contributory negligence. Tobin v. Western U. Teleg. Co. (1892) 146 Pa. 375, 28 Am. St. Rep. 802, 23 Atl. 324.

In Western U. Teleg. Co. v. Favish (1916) 196 Ala. 4, 71 So. 183, where the message as delivered to the telegraph company by the sender was, "Reasons for not writing papa operated on Monday night," and was signed by the wife of the sendee, and the message as delivered to the sendee read, "Reasons for not writing have operated on Monday night,"the court held that it was a question for the jury as to whether it could have been reasonably concluded, from the words of the message as delivered to the sendee, that the person indicated by the signature to such message had been subjected to a surgical operation, particularly in view of the fact that such person had not entirely recovered from an operation performed some time before, and it might have been naturally inferred that another operation was necessary.

And where a telegram announcing the death of the sendee's mother "this morning," as delivered to the telegraph company, was dated "Marshall, Texas, 11-16, 1895," and the telegram delivered to the sendee stated that it was "Received at Anniston, 11-14, 189," and below this line were the words, "Dated Marshall, Tex. 16," the court held that the question as to whether the sendee was contributorily negligent in failing to notice that the telegram was dated "Marshall, Tex. 16," was for the jury, stating that when attention was directed to the heading, "Marshall, Tex. 16," it was apparent, but the heading, "Received at Anniston 11-14, 189," was much more legible and conspicuous. Western U. Teleg. Co. v. Adair (1897) 115

Ala. 441, 22 So. 73, 2 Am. Neg. Rep. 487.

II. Failure to have the message repeated as contributory negligence, The annotation is not concerned with the question as to the validity and effect of regulations or stipulations of telegraph companies limiting liability for unrepeated messages, except in so far as the question whether the failure on the part of the recipient of the message to have it repeated is directly considered as one of contributory negligence.

In an action ex delicto, when from the face of the message, or otherwise, knowledge is brought home to the recipient of the message that there is a probable error, failure to have the message repeated, when this can be done before damage has occurred, would be such contributory negligence as to defeat the recipient's right to recover. Western U. Teleg. Co. v. Neill (1881) 57 Tex. 283, 44 Am. Rep. 589. And see Western U. Teleg. Co. v. Wright (1886) 18 Ill. App. 337, infra, IV.

A fortiori, it is true that, in an action ex contractu, the failure to comply with a stipulation requiring the repetition of messages would be such nonperformance of an essential condition as should exonerate the telegraph company. Western U. Teleg. Co. v. Neill (Tex.) supra.

In such case it would not be a sufficient excuse that reliance had been placed upon the subsequent declaration of the operator, that the message was correct as received by him. Ibid.

And in Passmore v. Western U. Teleg. Co. (1875) 78 Pa. 238, where the message as received for transmission read, "I hold the Tibbs tract for you," but as delivered by the company read, "I sold the Tibbs tract for you," it was held that the failure to have the message repeated was such contributory negligence as to relieve the company from liability. The printed blanks of the company stipulated that the company would not be liable for unrepeated messages.

However, where the message as delivered to the telegraph company ordered the plaintiff to purchase wheat

at "twenty-two" francs, but the telegram as transmitted to him by the company erroneously substituted the word "twenty-five," for the word "twenty-two," the plaintiff was held not guilty of negligence in not having the message repeated, although, in addition to the mistake in the price quoted, there were three misspelled words, which, however, the plaintiff detected and was easily able to decipher, the court observing that the word "twenty-five" was intelligible and plain, and expressed the price at which wheat was then ranging at the place where the telegram was received, and that it was natural for the plaintiff to suppose that such words had, in view of this fact, been transmitted correctly, the court being of the opinion that the errors he had discovered were not of a character which should have led him to doubt whether the word "twenty-five" was correct. De Rutte v. New York, A. & B. Electric Magnetic Teleg. Co. (1866) 1 Daly (N. Y.) 547.

And where, upon receipt of a telegram, the recipient, doubting its correctness, asked the operator from whom he received it if there was not a mistake in the price of a commodity quoted therein, and was informed by the operator that the latter had asked back if the price quoted was correct, and had been assured that it was, the court held that the recipient of the telegram had done all that could reasonably be required of a prudent man, and that a provision on the back of the telegram, exempting the telegraph company from liability in case the message was not repeated, was applicable only to the sender. Western U. Teleg. Co. v. Richman (1887) 5 Sadler (Pa.) 26, 19 W. N. C. 569, 8 Atl. 171. See to the same effect, Western U. Teleg. Co. v. Landis (1888) 9 Sadler (Pa.) 357, 21 W. N. C. 38, 12 Atl. 467.

A principal, who, being in doubt as to the meaning of a telegram from his agent relating to the matter of the latter's agency, requests the telegraph agent to have the message repeated, and upon being informed by the telegraph agent that the message as re

ceived is correct, acts upon the message as he understands it, is not guilty of contributory negligence. Hasbrouck v. Western U. Teleg. Co. (1899) 107 Iowa, 160, 70 Am. St. Rep. 181, 77 N. W. 1034.

If one has doubts as to the genuineness of a telegram he can send another message by the telegraph company for the purpose of verifying the genuineness of the one already received, and, when he has done this, he has the right to rely upon its being transmitted and delivered, and to accept the reply he receives, taken and delivered to him from the company's wires, confirming the genuineness of the first despatch, as itself genuine. Western U. Teleg. Co. v. Uvalde Nat. Bank (1903) Tex. Civ. App. —, 72 S. W. 232 (affirmed in (1903) 97 Tex. 219, 65 L.R.A. 805, 77 S. W. 603, 1 Ann. Cas. 573).

When, on account of an error in transmitting a telegraphic message, the receiver thereof is left in doubt as to its meaning, the question whether or not due diligence requires him to ask that the message be repeated, so as to remove its ambiguity, is one of fact for a jury. Manly Mfg. Co. v. Western U. Teleg. Co. (1898) 105 Ga. 235, 31 S. E. 156.

The court held that the jury were justified in finding that the receiver of a message did not act as a reasonably prudent man ought to have acted, where the message was unintelligible and ambiguous, and he acted upon it without having it repeated, or telegraphing to the sender for an explanation. Ibid.

And where a telegram was sent for the purpose of apprising the sendee of the death of his father, but the telegram was so erroneously changed in transmission as to convey the information that the mother, instead of the father, was dead, and two days later another telegram was sent, which stated that the sendee's father had been buried in the meantime, the court, in an action for damages for mental anguish claimed to have been suffered by the sendee from the belief for a period of two days that both of his parents were dead, held that it

the telegram, identification to be waived, such telegram being written on a receiving blank, which blanks were not open to the public, but used only for messages received by the telegraph company, and the purported payee of the drafts presented to the plaintiff bank three other telegrams, all purporting to come from the drawee of the draft in New York, all the messages being written on the receiving forms of the telegraph company and on the typewriter used by the telegraph company, and having on them the number used by the receiver of New York messages, although none of them had been sent from New York, and evidently they were all concocted in the office of the telegraph company at Dallas, the court held that in this case, where the plaintiff bank sued to recover damages because of being induced to pay the draft on the strength of the spurious telegram, contributory negligence could not become an issue, as the telegraph company, by negligently permitting some employee or other person to forge the telegram and send it by an employee to the plaintiff bank, was guilty of gross fraud upon the rights of the bank, and could not evade the results of that fraud by a plea that the plaintiff bank failed to use means to protect itself against such fraud. The court said: "It matters not that appellee may not have used ordinary care in verifying the telegram, and in identifying the person desiring to profit by it; appellant cannot be heard to say that appellee should not have believed that the telegram was a genuine one, which had come over the wires of appellant from New York, as represented by it. When the telegram was delivered to appellee by appellant, it carried with such de

livery a representation upon the part of appellant that it had been received in due course over its wires from New York, and appellee was authorized to act on the assurance of its genuineness, and no duty devolved upon it to exercise diligence to ascertain if the telegram had really been sent from New York. That duty rested on appellant, and it was guilty of perpetrating a fraud when it allowed a telegram to leave its office which had been prepared in that office, and had never come over its wires. Appellee had no means of knowing that the telegram was spurious, and could act on the presumption that appellant was acting carefully in the discharge of its business. The fraud would be no less reprehensible, whether it occurred through negligence or design, but if the representations of a party are made through ignorance, carelessness, or mistake, and the other party is deceived and misled thereby, the person making the representations would be liable for any damage resulting therefrom, no matter whether the party who acted on the representations acted with ordinary care or not."

A bank which receives a forged telegram transmitted by the defendant telegraph company, purporting to have been sent from another bank, ordering the former to pay a party named in the telegram a certain sum of money, is not as a matter of law guilty of contributory negligence in paying the money to the party named in the telegram without identification, and without waiting to make inquiry of the other bank. Citizens Nat. Bank v. Western U. Teleg. Co. (1913) 159 Iowa, 720, 139 N. W. 552, Ann. Cas. 1915D, 243. R. P. D.