#### T. J. NEWSOME v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 20 March, 1907).

1. Telegraph Companies — Message—Error in Transmission — Sendee’s Name Changed. — When in the transmission of a telegram ordering the shipment of four gallons of “corn,” meaning corn whiskey, the name of the sender was erroneously transmitted and damages claimed on that account for failure to receive the whiskey, the plaintiff must show by a preponderance of the evidence that the sendee was deceived by the error, and for that reason only failed to ship, and that he understood that corn whiskey was intended.

2. Telegraph Companies — Message—Error in Transmission — Evidence. — Where a telegram had been sent ordering goods which failed to arrive, it is not sufficient evidence to go to the jury upon liability of defendant for damages thereby claimed, to merely show that the sendee of the message had sold plaintiff goods on a credit before and since the time of the sending of the message, as the failure to ship or receive the whiskey may have been from other causes.

Civil actioN, tried at Fall Term, 1906, of the Superior Court of SamsoN County, before Jones, J., and a jury.

The defendant excepted and appealed from the judgment rendered.

*179 John D. Kerr .and George E. Butter for plaintiff.

F. H. Basbee & Son and B. G. Strong for defendant.

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 *180message 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.