The defendant excepted and appealed from the judgment rendered. This case is reported in 137 N.C. 513, and it is unnecessary to again state the facts. In the opinion of the Chief Justice, speaking for the Court, it is there said: "This was error, for two reasons: first, it did not appear in the 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 Royal, the sendee. It is, therefore, as already held, incumbent upon the plaintiff to show by a preponderance of the proof that Royal was deceived by the error, and for that reason refused to ship the whiskey. The jury must also be satisfied that Royal 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 *Page 126 plaintiff had purchased whiskey from Royal 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 Royal was not misled as to the identity of the sender of the message, and may also have (180) understood "corn" to mean "corn whiskey," yet he may not have filled the order for other reasons. He may not have had the article on hand at the time; again, he may personally have neglected and overlooked the order and failed, therefore, to ship; or he may have preferred to have the cash before shipping, or the shipment may have gone astray, etc., etc. The proof tendered does not exclude either of the above hypotheses, and is consistent with all.
New trial.
Cited: Gardner v. Tel. Co., 171 N.C. 409.