(dissenting)—I am obliged to dissent from this disposition of this case. It is illogical and erroneous upon any theory. If the judgment is not to be affirmed upon the facts and the law in full, it should be only upon the facts that the Imperial Valley Mercantile Company knew, or had every reason to believe, that the price stated in the telegram as delivered to it was not the true price and acted upon it in bad faith, and that no contract was made between the respondent and it, and reversed. Where oranges worth $2.60 per box were quoted by error in transmitting the message at $1.60 per box, the court in Germain Fruit Co. v. Western Union Tel. Co., 137 Cal. 598, TO Pac. 658, 59 L. R. A. 575, held that the difference in price was sufficient to put the receiver on inquiry as to the correctness of the message; that, when the receiver received them at this price, it did so intending to defraud the seller; that, in such case, the seller had a good cause of action against the buyer and could not waive it, permit the buyer to get away with its fraudulent advantages, and recover the entire loss from the telegraph company. But I do not approve that case. To do so would be to compel the seller to go to a distant jurisdiction in such case as this, waiving his remedy against an accessible and responsible concern, primarily liable, and resort to all the hazards of recovering his loss. And the majority disapprove that doctrine and sustain the liability of the appellant here.
*437There was no conflict in evidence in this case that the telegram was negligently altered in. transmission and so delivered, that, acting upon the misstated instructions contained in it as delivered, the agent of respondent and the buyer completed the transaction immediately prior to the discovery of the mistake. The apples were immediately delivered and' the money collected at the mistaken price.
After discovering the error in transmitting the message, the telegraph company attempted to induce the buyer to adjust the matter by paying the difference between $1.08 per box and $1.80 per box. The buyer, for a settlement in full, made a tentative offer to the effect that it would be willing to pay $1.50 per box. There was no definite offer, and no tender then or thereafter made to that effect.
Had respondent acted upon that suggestion and agreed to accept the $1.50 per box, it would have been equivalent to abandoning the previous offer at $1.80 per box, making a new contract for $1.50 per box, settling at that price, and forever waiving his claim and right to recover his entire loss from any source. And we certainly would so hold. Had the negligent telegraph company given the respondent the opportunity of accepting from the buyer such portion of the loss as the buyer was willing to stand, to minimize the damages to it, a different condition would1 be presented. It is not contested here that the apples were actually worth, at a fair market price, $1.80 per box. Respondent is entitled to recover from the source of his damage his actual loss. That loss is the difference between the price received by him on the completed sale and the fair market value of the apples. In my opinion, the telegraph company by procuring, and the buyer by making, an ex post facto offer, cannot deprive plaintiff of any part of his actual damages.
The principal' case cited by the majority, Fererro v. Western Union Tel Co., is not analogous. In that case, the receiver of a negligently altered message, upon discovering the real price quoted, refused to accept delivery of the goods. *438It was held that: the measure of damages recoverable by one who gets a telegram, for a mistake in understanding the price in an offer to sell goods, is limited to such difference in price, excluding any loss of profits on a contract of resale made on the faith of the telegram, but not carried out because he had himself refuséd to receive the goods, etc.
After the goods were delivered to the buyer by respond1* ent’s agent, on the faith of the altered message, and the price received, there was nothing respondent could do to prevent further loss or damage, or, as is stated, minimize his damages ; and he did nothing to augment them.
Upon the facts in this case, I am convinced the case was properly submitted to the jury, and1 that the verdict and judgment should be affirmed in entirety.
Ellis, C. J., concurs with Holcomb, J.