In Tyler, Ullman & Co. v. W. U. Tel. Co., 60 Ill. 421, and W. U. Tel. Co. v. Tyler et al., 74 Id. 168, it was held that regulations exempting telegraph companies from liability for errors in unrepeated messages, exempt them only from errors arising from causes beyond their own control; and that notwithstanding special conditions in a contract, such companies are bound to use at least ordinary care and diligence in their business and are responsible for mistakes happening by their own fault, such as defective instruments, carelessness or unskillfulness of their operators. In the Tyler case the question before the court had reference to an unrepeated message, whereas the matter now under consideration is in respect to a night message ; but as a telegraph company is bound to use ordinary care and diligence as well in the transmission and delivery of a night message, as of a day message, the same rule would apply. In True v. Int Tel. Co., 60 Maine, 8, the dispatch was a night message, and was written on a night message blank that contained a provision much like that here involved, and it was held that the terms of the conditions were not reasonable and did not exonerate the company from liability for damages occasioned by their default. A similar stipulation "with reference to a night dispatch was in Hibbard v. W. U. Tel. Co., 33 Wis. 558, held to be unreasonable and void, and against sound public policy, inasmuch as it undertook to protect the company against the consequences of the negligence or fraud of its own agents. The same doctrine with reference to a night telegram is announced in Candee v. W. U. Tel. Co., 34 Wis. 471. In Bartlett v. W. U. Tel. Co., 62 Maine, 209, which was an action to recover damages for a mistake in the transmission of a night dispatch, it was decided that a condition of the kind under consideration was *352against public policy, and therefore void even when assented to by the sender. These two latter cases are expressly referred to and approved by our Supreme Court in W. U. Tel. Co. v. Tyler, supra. The only circumstance of difference between the present case and those we have cited, is that here the damages are limited to ten times the charges paid for sending, instead of the exact amount so expended. The rule or contract, whichever it may be, claimed to be now in question, covers all errors or delays from any cause, and it must be regarded, .so far as it proposes to relieve the corporation from responsibility for the negligence or misconduct of its own employes, as unreasonable an l unjust, alike hurtful to private rights and against public policy, and consequently void. The provision to pay a sum as damages, that shall in no event exceed ten times the trifling amount received as compensation for sending, is a mere shift or device to evade legal liability.
It is the established law in this State that a mistake in the transmission of a message is prima facie evidence of negligence, and the burden of proof is shifted to the company to show the contrary. There is, however, in the record, affirmative proof, other than the fact of the error, to establish the negligence of appellants. It appears that when the telegram reached Portland and was delivered, it was marked “ 12 pd. 56,” and this is shown by the testimony to mean that the message sent contained twelve words and that fifty-six cents had been paid for its transmission. It must be regarded as evidence of gross negligence to deliver a message purporting to contain twelve words and actually consisting of but eleven, without inquiry as to the lost word.
It is urged that before the company can be held liable for more than nominal damages it must appear that they had knowledge of the meaning and purport of the message, at least to the extent that they could j udge of the nature, character and amount of damages that might be sustained through a failure to correctly transmit. The evidence shows that it was an ordinary commercial dispatch, intelligible to those engaged in the grain business, and no doubt understood by the opera*353tors having charge of that character of telegrams sent from the office of appellants in the Board of Trade building. It was at least evident it was a commercial message of importance; and it disclosed the nature of the business as fully as the case demanded. Tyler, Ullman & Co. v. W. U. Tel. Co., ante.
A principal point in this litigation is with reference to the proper rule for the assessment of damages, as applicable to the facts of the case. We have already seen that the damages should not be restricted to the maximum recovery as fixed by the terms of the supposed rule or contract printed upon the blanks used for writing night messages. It is claimed by appellees that they were entitled to recover $551.25, that being six cents per bushel on 9,1874 bushels of oats shipped, and being the difference between the price at which they supposed the oats were sold and that at which they actually were sold, and being also the amount they were obliged to pay to the Paris Flouring Company. We are unable to indorse this view of the matter; the evidence shows that if the telegram of Axigust tenth had been transmitted and delivered as it was written, the offer to sell would have been declined; and if damage was. allowed upon the basis suggested, appellees would recover a profit they would not and could not have realized if there- had. been no default on the part of the appellants. Turner v. Hawkeye Tel. Co., 41 Iowa, 458, cited by appellees, we do not consider ah authority in point. There Turner had a contract for the delivery of August wheat in Chicago at $1.32 a bushel, and on the faith of the dispatch in which the mistake was made, ordered his commission merchant there- to purchase wheat to fill the contract, which was done. The price reported-by the telegraph company was $1,214- per bushel, and the price paid was $1.50 per bushel, a difference of twenty-eight and one half cents per bushel, and the court sustained a recovery on the basis of this difference. But the evidence in this case showed that Turner could have purchased wheat on the market at even $1.12 per bushel within five days and within the time prescribed by his contract for the delivery of the wheat he had sold. In that case the contract that was recognized as the basis of recovery could readily have been made, *354while here the contract that we are asked to adopt as the basis of assessment could not have been made.,
Appellees, supposing they had a contract at 56| cents per bushel, bought on the market in Peoria oats to fill it at an average price of 45 cents per bushel,-and the freight was 10J Cents a bushel; making the cost of the pats delivered in Portland, the sum of 55J cents per bushel. The party who sends a message by telegraph makes the' telegraph company his agent for its transmission and delivery, and is bound by the message as delivered; and when the legal rights of the receiver, founded upon such message, are in question, he is entitled to put in evidence the message actually received, as the original. Durkee v. Vt. C. R. R. Co., 29 Vt. 127; Saveland v. Green, 40 Wis. 431; Morgan v. The People, 59 Ill. 58. The telegraph company, then, was the agent of the appellees, and the real and binding contract between appellees and the Paris Flouring Company was at fifty and one half cents per bushel, and the oats having cost appellees delivered in Portland fifty-five cents per [bushel, there was a clear loss to appellees of five cents per bushel. The verdict of the jury and judgment of the court were upon that basis, and were correct.
There were no such errors in the ruling of the court in respect to admitting or excluding testimony as should reverse the judgment. The instructions were substantially correct, and as favorable to appellants as the law warranted:
The judgment is affirmed.
Affirmed.