In the reported case (FLETCHER V. INTERSTATE CHEMICAL Co. ante, 92) it appeared that the parties, at the time of making a contract, had before them drawings of presses and intended to construct certain presses to conform thereto. The drawings had a general likeness to, but were not exactly like, Shriver presses. The court holds that the construction of presses in conformity with the drawings, though not exactly like Shriver presses, did not violate a stipulation of the contract that the presses were to be "similar" to Shriver presses. Similar privileges license to photographer. It has been held that a permit given to a person to cut silhouettes of customers out of black paper, with scissors, was not a breach of a covenant made in granting a license to a photographer to take photographs within a certain portion of exposition grounds, which provided that "the said lessor hereby covenants and agrees with said lessee that it will not, during the exist ence of this contract, grant like or similar privileges hereby granted, to any other person, persons, or corporations." Frankel v. German Tyrolean Alps Co. (1906) 121 Mo. App. 51, 97 S. W. 962. Similar property - eminent domain. In Wassenich v. Denver (1919) 67 Colo. 456, 186 Pac. 533, the court said, in holding that evidence of the price paid for other tracts, if similar to the one in question, was admissible in an eminent domain proceeding, and that the other tracts were in fact similar: "All the tracts were situated in the same general section and locality of the city, and were not more than a quarter of a mile apart. They were the same kind of property, and all had the same general features and characteristics. They were trackage properties, and valuable principally for trackage use, and actually used for that purpose. The section of the city they were in placed them in a general class by themselves, easily distinguish same able from uptown business property, or from the ordinary resident portions of the city. True, each tract possessed many differences, just as things that are similar may differ in many respects. But that does not make the evidence inadmissible. It being the kind of property, valuable principally for the same use, possess ing the same general features, situated in the same general locality of the city, and used for the same purpose, we do not think it was an abuse of discretion for the court to admit the evidence. All business property in a general section, or all residence property in a general locality, is 'similar' in the sense in which the word is here used, though each parcel may possess many points of difference. Similarity does not mean identical, but having a resemblance. No general rule can be laid down regarding the degree of similarity that must exist to make such evidence admissible. It must necessarily vary with the circumstances of each particular case. Whether the properties are sufficiently similar to have some bearing on the value under consideration, and to be of any aid to the jury, must necessarily rest largely in the sound discretion of the trial court, which will not be interfered with unless abused. The court must determine the question before admitting the evidence, and, after it is admitted, the opposite party may show to the jury that the circumstances are such as to render it of little or no value. In determining the weight of such evidence, the jury may consider the time of the sale, the amount of land, and any and all differences, facts, or circumstances affecting the value of such evidence. The court did not err in holding that the sales of the two parcels were sufficiently similar to make the evidence admissible." Similar property — taxation. Construing a statute providing that "from and after the year 1900, the property, real and personal, in the territory so annexed, shall be liable to taxation therefor, in the same manner and form as similar property within the present limits of said city may be liable," the court said: "The word 'similar,' as used in this clause of the section, does not refer to property improved in any particular way, or located in any particular locality in the city. It has reference to real and personal property within the then limits of the city, and, had there been no proviso added to this section, the clause quoted would have indicated clearly the intention of the legislature to be that after the year 1900 all property in the annex, real and personal, should be liable to taxation at the full city rate in the same manner and form as other real and personal property in the city." Baltimore v. Gail (1907) 106 Md. 684, 68 Atl. 282. Similar purposes — extradition. Under a statute (Act of August 3, 1882, § 5, 22 Stat. at L. 216, chap. 378, Comp. Stat. § 10,116, 3 Fed. Stat. Anno. 2d ed. p. 313) providing that "depositions, warrants, or other papers, or copies thereof, shall be received and admitted as evidence on such hearing, for all the purposes of such hearing, if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped; and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant, or other paper, or copies thereof, so offered, are authenticated in the manner required by this act," it has been held that the words "similar purposes" mean "all the purposes of such hearing" that is, proof of criminality. Re McPhun (1887) 24 Blatchf. 254, 30 Fed. 57; Re Oteiza v. Cortes (1890) 136 U. S. 330, 34 L. ed. 464, 10 Sup. Ct. Rep. 1031, 8 Am. Crim. Rep. 241. See to the same effect, Re Lincoln (1915) 228 Fed. 70. Similar scheme - lottery. An arrangement for the selling of lots, and a drawing by which the lots sold were to be parceled out to the buyers, have been held to be similar to a lottery, under a statute making it a penal offense to send a letter through the mails concerning "a lottery or similar scheme offering prizes dependent in whole or in part upon lot or chance." United States v. Ridgway (1912) 199 Fed. 286. Similar stock-sales contract. In Canada Glue Co. v. Galibert (1909) Rap. Jud. Quebec 36 C. S. 473, 18 Ann. Cas. 791, the contract under consideration provided that the buyer should pay for certain calf and sheep skin trimmings as high a price as he paid to other tanners for "similar stock." It was held that hide trimmings other than calf or sheep skin, but used for the same purpose, constituted "similar stock" within the meaning of the contract. In construing a statute relating to the playing by minors on a pigeonhole table, "or any table similar thereto, or any billiard table," the court in Com. v. Nance (1914) 158 Ky. 444, 165 S. W. 423, held that a pool table was within the statute, saying: "The evidence . . showed that 'pigeonhole tables' are tables not so wide as pool tables, and longer, but with four legs, and with rubber cushions on the sides and ends and covered with cloth, and, instead of having pockets at each corner and on the sides, had a number of holes in the table at one end and certain pegs at or near these holes; that the game was played with balls and a cue, and, instead of the balls being numbered as in the other game, the holes or pockets into which the balls rolled through the holes are numbered. It appears in the evidence that in playing pool the player may shoot from any side or end of the table where the cue ball may happen to be, in his effort to put the numbered balls into the pockets, while in playing on the pigeonhole table he is required to shoot altogether from one end of the table. In each game it is the purpose to put the balls either into the pockets or the holes. Each table is constructed along the same general lines. While the dimensions of the tables are different, they are each covered with a cloth, and they are each surrounded by rubber cushions to give life to the balls when they strike them; it requires, in each game, the same skill and practice to put the balls in the pockets on the one table as to put them into the holes on the other table; and in a general way it may be said, not only that the tables are constructed along the same general lines, but that games played upon the tables require, in a general way, the same sort of skill, the same kind of practice, and a knowledge of the same character. Manifestly, it was the purpose of this enactment to discourage minors from frequenting such places, and to protect them from the evil habits which may be so easily contracted in such surroundings. With this purpose of the statute in view, and considering the general similarity between the two games of pool and pigeonhole, it cannot be said with any degree of reason that it was the purpose of the statute to protect them from the playing of pigeonhole pool, and not to protect them from the playing of ordinary fifteen ball pool. Statutes must be given a reasonable interpretation, and must always be construed so as to effectuate the purpose of their enactment when it can be done without doing violence to the language itself." Similar use― streets. The use of a street for an awning constructed of iron and glass has been held to be similar to the use of a street for bow or bay windows, hitching posts, areaways, steps, planting of trees, storm doors, drains and drain pipes and stands, under a statute permitting the board of estimate to grant the use of the streets for the latter and similar uses without an ordinance. Preston v. Likes (1906) 103 Md. 191, 62 Atl. 1024. Similar work— building contract. Under a contract providing that certain interior fittings and fixtures shall be "similar" to those in a certain store, the work is not to be an exact duplicate of that in the store named, but as nearly like it as the provisions of the contract and the general conditions will permit. Greenbaum v. De Jong (1917) 166 N. Y. Supp. 1042. W. S. R. 1. Whether or not it is negligence not to attempt to notify the sender of a telegram of inability to deliver the message after it reached its destination, because the sendee cannot be found, is a question for the jury. [See note on this question beginning on page 109.] Telegraph - duty of corporation accepting message. 2. A telegraph company accepting a message for transmission and delivery undertakes to transmit and deliver it promptly. [See 26 R. C. L. 548.] Definition "promptly" ting telegram. transmit the duty of a telegraph company in ab 4. Absence of negligence is a defense to an action for failure prompt 3. The word "promptly," defining ly to transmit and deliver a telegram, APPEAL by defendant from a judgment of the Circuit Court for Tuscaloosa County (Foster, J.) in favor of plaintiff in an action brought to recover damages for alleged failure of defendant promptly to deliver a death message. Reversed. The facts are stated in the opinion of the court. & Cabaniss, Francis R. Stark, and H. A count in an action against a telegraph company which alleges that defendant contracted to transmit and deliver a telegram, but does not allege that it agreed to do so promptly, and which avers that the contract was breached by its failure to transmit and deliver promptly, is subject to demurrer because it does not show that defendant broke the contract which it made, since for aught that appears from the averments of the count defendant performed its contract to transmit and deliver, though it may not have done so promptly. Wellman v. Jones, 124 Ala. 580, 27 So. 416; 37 Cyc. 1722; Western U. Teleg. Co. v. Smith, Tex. Civ. App. 133 S. W. 1062; Western U. Teleg. Co. v. Henry, 87 Tex. 165, 27 S. W. 63; Lewis v. Southwestern Teleg. & Teleph. Co. Tex. Civ. App. S. W. 303. 59 A count in an action against a telegraph company for failure to transmit and deliver a telegram promptly must allege that the delay in delivery, or failure to deliver, was caused by a want of reasonable and ordinary care on the part of the defendant, since a telegraph company is not an insurer of the delivery of telegrams, but is only under the duty to exercise reasonable and ordinary care. 39 Cyc. 1671; Western U. Teleg. Co. v. Cunningham, 99 Ala. 314, 14 So. 579; Western U. Teleg. Co. v. Chamblee, 122 Ala. 428, 82 Am. St. Rep. 89, 25 So. 232; Western U. Teleg. Co. v. Crumpton, 138 Ala. 632, 36 So. 517; Western U. Teleg. Co. v. Blocker, 138 Ala. 484, 35 So. 468; Western U. Teleg. Co. v. Whitson, 145 Ala. 426, 41 So. 405; Western U. Teleg. Co. v. Garthright, 151 Ala. 413, 44 So. 212; Western U. Teleg. Co. v. Littleton, 169 Ala. 99, 53 So. 97; McGehee v. Western U. Teleg. Co. 169 Ala. 109, 53 So. 205, Ann. Cas. 1912B, 512. In an action against a telegraph (- Ala. 89 So. 299.) company, a count which alleges that the defendant undertook, and was paid a consideration, to transmit and deliver a message, and which also alleges that defendant was under the duty to notify the sender if for any reason it could not deliver the message to the addressee, but which fails to allege that defendant made any agreement so to notify the sender, or was paid any consideration therefor, is subject to demurrer. fails to aver that the defendant could, in the exercise of reasonable diligence, have located the sender and so notified him. Western U. Teleg. Co. v. Hawkins, 14 Ala. App. 295, 70 So. 12; Newton v. Brook, 134 Ala. 269, 32 So. 722; Birmingham R. Light & P. Co. v. Abbott, 6 Ala. App. 643, 60 So. 970. It is the duty of a telegraph company to exercise care to find the addressee and make delivery. If it exercises that diligence, it is under no further duty to the sender. If, on the other hand, it fails to exercise due diligence to make delivery, it violates its duty, and the sender's right of action is complete, and there is no separate, independent duty to notify the sender. Western U. Teleg. Co. v. Henderson, 89 Ala. 510, 18 Am. St. Rep. 148, 7 So. 419; Western U. Teleg. Co. v. Merrill, 144 Ala. 618, 113 Am. St. Rep. 66, 39 So. 121; Western U. Teleg. Co. v. Benson, 159 Ala. 254, 48 So. 712; Middleton v. Western U. Teleg. Co. 197 Ala. 243, 72 So. 548; Western U. Teleg. Co. v. Smith, 189 Ala. 534, 66 So. 578. A count in an action against a telegraph company is bad for duplicity and misjoinder of causes of action, where it alleges a duty on the part of defendant to transmit and deliver a telegram, and its breach, and also a separate duty on the part of the company to notify the sender of any inability on its part to locate the addressee and make delivery, and the breach of that duty, and alleges that the plaintiff was damaged by both alleged breaches of duty. Louisville & N. R. Co. v. Cofer, 110 Ala. 491, 18 So. 110; Southern R. Co. v. Bunnell, 138 Ala. 247, 36 So. 380; Birmingham R. Light & P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361, 4 N. C. C. A. 432; Friddle v. Braun, 180 Ala. 556, 61 So. 59; Sibley v. Barclay, 14 Ala. App. 422, 70 So. 201. And such a count is subject to demurrer where it alleges that the defendant was under the duty to notify the sender if for any reason it was unable to deliver the telegram, but Western U. Teleg. Co. v. Hawkins, 14 Ala. App. 295, 70 So. 12. It was error to leave it to the jury to find whether, if the sender had been notified by the telegraph company of its failure or inability to deliver the message, he could have communicated with his daughter by long-distance telephone or other means and secured her attendance at the funeral, where there is no evidence that there was long-distance telephone connection available between the place of the residence of the sender and of the addressee, and where it is not shown that, even if the addressee had been notified by such other means, she would have had time to reach the scene of the funeral in time to attend it. Western U. Teleg. Co. v. Williams, 16 Ala. App. 420, 78 So. 414; Western U. Teleg. Co. v. Robbins, 3 Ala. App. 234, 56 So. 879; Western U. Teleg. Co. v. Hawkins, 14 Ala. App. 295, 70 So. 12; Western U. Teleg. Co. v. Miller, 196 Ala. 620, 72 So. 168; Western U. Teleg. Co. v. McMorris, 158 Ala. 563, 132 Am. St. Rep. 46, 48 So. 349; Western U. Teleg. Co. v. Stewart, 16 Ala. App. 502, 79 So. 200; Bright v. Western U. Teleg. Co. 132 N. C. 326, 43 S. E. 841; Hancock v. Western U. Teleg. Co. 137 N. C. 497, 69 L.R.A. 403, 49 S. E. 952; Southwestern Teleg. & Teleph. Co. v. Givens, Tex. Civ. App., 139 S. W. 676; Miller-Brent Lumber Co. v. Douglas, 167 Ala. 286, 52 So. 414, 17 Cyc. 1758. Where a telegram originating at one point within a state and addressed to another point within the same state is, in the ordinary course of the business of the telegraph company, and pursuant to its customary rules and practice, sent to a relay point in another state in the course of transmission, the telegram constitutes interstate commerce, and the common law, as construed by the Federal courts, is the applicable law, to the exclusion of the law or public policy of the state where the message originates, and which allows recovery of damages for mental anguish. Western U. Teleg. Co. v. Hawkins, 198 Ala. 682, 73 So. 973; Hanley v. Kansas City Southern R. Co. 187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. Rep. |