Newsome v. Western Union Telegraph Co.

Brown, J.

Tbis case is reported in 137 N. C., 513 , and it is unnecessary to again state the facts. In the opinion of the Ghief Justice, speaking for the Court, it is there said: “This was error for two reasons: first, it did not appear in tire evidence that the whiskey would have been sent if the message, when received by the sendee, had had the plaintiff’s name properly signed thereto.” The negligence consists in an error in transmission, the signature of the plaintiff having been written “T. J. Sessoms” instead of “T. J. Newsome,” and so delivered to Eoyal, the sendee. It is, therefore, as already held, incumbent upon the plaintiff to show by a preponderance of the proof that Eoyal was ■deceived by the error and for that reason refused to ship the whiskey. The jury must also be satisfied that Eoyal understood that the word “corn,” used in the message, meant “corn whiskey.”

We find no evidence in the record tending to sustain these necessary allegations of fact, and, therefore, hold that .the Court erred in refusing to give the defendant’s prayer for instructions to that effect. The only evidence which, it is argued by plaintiff, tends to support such allegation is that prior to 3 February, 1902, the date of the telegram, the plaintiff had purchased whiskey from Eoyal on credit. This fact, if true, is a mere collateral circumstance and tends to prove nothing. The failure to ship the “corn” can be accounted for on a different hypothesis than the failure to get the message correctly delivered under the circumstances of the case, and therefore the evidence is insufficient. 1 Greenleaf Ev., sec. 12; 1 Stark. Ev., 471, note. Assuming that the message had been correctly transmitted, or that ■ Eoyal was not misled as to the identity of the sender of the *180 message and may also bave understood “corn” to mean “corn whiskey,” yet be may not bave filled tbe order for other reasons. He may not bave bad tbe article on band .at tbe time; again, be may personally bave neglected" and overlooked tbe order and failed therefore to ship; or be may have preferred to bave tbe cash before shipping, or tbe shipment may bave gone astray, etc., etc. Tbe proof tendered does not exclude either of tbe above hypotheses and is consistent withal.

New Trial.