delivered the following dissenting opinion:
I am unable to agree with the conclusion reached by the other members of the court in this case. The question is one of the measure of damages, not of the right of recovery. The rule advanced in Hadley et al. vs. Baxendale, 26 E. L. & E., 398, is that the damages should be such as may fairly and substantially be considered as arising naturally, i. e., according to the natural course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of it. The defendant’s clerk was informed that the mill was stopped and that the plaintiffs desired the broken shaft to be sent immediately, but was not informed of the special purpose for which the broken shaft was to be forwarded, or rather also the special circumstances under which it was being sent, viz;: that it was essential to the running of the mill to have a new shaft. It was held by the Exchequer that damages for the loss of profits incurred by the stoppage of the mill through defendant’s delay did not arise in the natural course of things from the breach of contract in not delivering the pieces of the broken shaft in a reasonable time, under the communications made to defendant’s clerk. It is contended that this rule in Hadley vs. Baxendale is not applicable to a case like the one now before us; and it is said that the business of a common carrier is to transport from one locality to another some' tangible object of weight and dimension; that compensation for its value, *650if lost or destroyed in transportation, or such damage for its delay as the object itself might suggest, is the only liability experience would suggest; that the business of the telegraph company is the transmission from one person to another, and from one locality to another, of information or intelligence, nothing or intangible in itself, but as the basis and ground work that is to influence the conduct of others; that there.is no similarity in the services to be performed, or in the nature of the things to be transported or transmitted or the purposes to be effected, and, as a consequence, none as to the measure of damages for failure to perform their respective agreements. It does seem to me that experience has suggested some other liability in the case of the common carrier than compensation for the value of the lost or destroyed article, and some other damage for delay than the object itself might suggest; this liability or damage is that where there are special circumstances from which there would, in case of a breach, ordinarily follow or naturally result to the plaintiff a greater damage than the object itself would suggest; and in such eases they should be held liable for the damage naturally flowing from such special circumstances in the event they were communicated to the carrier when the contract was entered into. This rule of Hadley vs. Baxendale is founded upon and is the expression of that which experience had suggested. It is a rule to cover such damages as the “ object ” itself did not suggest in case of delay, and it declares that such damage shall not be recovered on the one hand, or borne and paid on the other, unless the special circumstances from which it would naturally, ordinarily or in the usual course of things, result, are communicated to the carrier; when they are communicated the damages are within the contemplation of the parties in law, whether so in fact or not. This is an eminently just rule and I am unable to see why it is *651not as applicable to the contract of a telegraph company as to a common carrier of tangible objects. Why should the measure of damages be in the one case what the known subject matter alone, or the known subject matter and special circumstances communicated, naturally suggest as likely to follow from a breach, and in the other be what would naturally result from the breach whether the subject matter suggested the damage or not. The purpose of requiring a communication of the special circumstances in order to recover damages other than the subject of the contract may suggest, is to enable the carrier to perceive or contemplate such damages and to provide against them if he desire, and even if he does not so desire, to acquaint him with the responsibilities of his undertaking, and thus in effect to relieve him from any responsibility greater or other than he has seemed by the nature and terms of the contract to undertake. Why is not this a just rule for the telegraph company ? Do not such companies transmit messages varying as much in value as do the commodities conveyed by railroad companies ? Why should not they as well as any other party be entitled to know what is involved in their contract, and be liable for no more than appears to be ? The doctrine of the opinion of the majority of this court establishes a principle heretofore unknown, (but for the Alabama case and possibly one in California) in the history of the law, viz: imposing upon a party an amount of damage which neither the subject matter or terms of the contract as they appear upon their face to him, and to every other person in the world, suggest. It cannot be maintained that an intelligible telegram does not suggest to the telegraph company, or ift other words, to its agent, both its subject matter, and the damages which would naturally and proximately result from the breach of the contract to transmit and deliver, as much as the sight or description of *652a tangible object suggests its nature and the damages which may so arise from the breach of contract to convey and deliver it. Consider these telegrams as they appear on their face without the aid of the “key,” and the contract to convey and deliver them as alleged in the declaration, and who can tell what damage would naturally, proximately and reasonably result from any failure of the telegraph company to deliver, other than the cost of transmissal and delivery ? In Sanders vs. Stuart, 1 C. P. D., 326, (see p. 225-6, 1st Vol. Sedgwick on Damages,) the defendant’s business was to collect telegraphic messages for transmission to America, and the plaintiff gave him a message in cipher which he negligently failed to send. The message was an order for goods on which the plaintiff would have made a commission, and it was held that he could not recover the commission, but only nominal damages, and Coleridge, C. J., said that there were no damages which wereiu the contemplation of the parties ; “ and,” he continued, “ for the same reason, viz: the total ignorance of the defendant as to the subject matter of the contract (an ignorance known to and intentionally procured by the plaintiff,) the first portion of the rule applies also,” for, said he, there were no damages arising naturally from the breach. In the opinion in Daniel vs. W. U. Tel. Co., 61, Texas, 457, we find the following from 6th Wait’s Aetious and Defences, 19 : “ Where the import of a telegraphic message to whom it is delivered is wholly unknown to the company’s agent, it cannot be assumed that he had in view any pecuniary loss as the natural or probable result of a failure to send such message, and in such case, upon a breach of the contract to transmit and deliver, the sender can‘Yecover only nominal damages or the.amount-paid for sending the message.”
The rule advanced by the- other justices of this court bases’the measure Of damages, in ease of breach, not upon *653the known subject matter of the contract, and its terms as they appear to the contracting minds, and which contracting minds have never assented to any other subject matter than what appears on the face of the telegram, but upon a subject matter which a hidden meaning of the terms used may happen to disclose. The. rule strikes me as neither wise nor just. The fact that upon a disclosure to the telegraph company, or its agent, of the subject matter or meaning of the telegram, neither the method of transmission, nor the time in which it was to be sent, nor the agency employed, nor the price demanded, nor the degree of skill used in transmission would have been changed, is no justification for imposing upon a telegraph company, or other defendant, a measure of damages which the subject matter of the contract, as such subject matter is made to appear by the plaintiff, does not naturally suggest. The rule that requires the sender of the telegram to communicate its subject matter and importance to the telegraph company before it can be made liable for damages naturally flowing from a breach of it, is, I believe, wiser and in every way more just, and has been fully and very uniformly sustained by the American and English courts as applicable to telegraph contracts. Sutherland on the Law of Damages, Vol. 3, pp. 298, 299 and cases cited; 6 Wait’s Actions and Defences, p. 19, and cases cited; Daniel vs. W. U. Tel. Co., 61 Texas, 452, and cases cited ; Sanders vs. Stewart, Jacob’s. Fisher’s Digest, Vol. 8, p. 12,911.