ON REHEARING.
Thomas L. Glenn, for Appellants. The court correctly ruled in its former opinion that the contract was made between the appellants and the livestock and commission company, by means of the telegrams, and not with White or through' White as the "agent of the livestock company, for the reason that the weight of authority favors the proposition that the telegraph company was the agent of the appellants in the delivery of the message to the livestock company; that the livestock company completed the contract so far as it was concerned by delivering to the respondent a message accepting the offer of appellants, the appellants thereupon complying with the terms of' the message of acceptance; the idea of agency of White does not appear in any manner in either of the telegrams; the only evidence, if evidence at all, of such agency is the statement of witness Stark wherein he stated that White represented himself to be the agent of said company, and, if he was agent, he was certainly repudiated by both parties in their telegraphic correspondence. (Pepper v. W. U. Tel. Co., 87 Tenn. 554, 10 Am. St. 699, 11 S. W. 783, 4 L. R. A. 660, and cases cited; Bond v. Hurd, 31 Mont. 314, 78 Pae. 580, 3 Ann. Cas. 566; Thompson on Law of Electricity, see. 496; Joyce on Electric Law, 2d ed., sec. 905; 10 Current Law, 1844.) Clark & Budge, for Respondent. The parties were never of the same mind concerning a material element of the contract, to wit, the price, and therefore there was no meeting of minds; therefore there was no contract as a result of the telegrams. Appellants were not bound to deliver the cattle at the price quoted in the telegram as delivered to the commission company, because they never agreed to sell at such a figure. They might have otherwise disposed of the cattle and obtained the highest possible price for them without regard to the telegrams, for the telegrams did not create or give rise to any obligation on the part of the appellants to sell to the commission company at any particular figure. (Pepper v. Western Union Tel. Co., 87 Tenn. 554, 10 Am St. 699, 4 L. R. A. 660, 11 S. W. 783 ; Postal Telegraph Cable Co. v..Schaefer, 110 Ky. 907, 62 S. W. 1119; Shingleur v. Telegraph Co., 72 Miss. 1030, 48 Am. St. 604, 18 So. 425, 30 L. R. A. 444.) The eases above cited, and also the ease of Western Union Tel. Co. v. Dubois, 128 Ill. 248, 15. Am. St. 109, 21 N. B. 4, hold that the sender has an action based upon his contract with the telegraph company for the correct transmission of the message, or an action in tort when he has suffered because of an error, and they also hold that the sendee may sue in tort; but we cannot understand upon.what theory appellants can hold the respondent liable for an .error when they suffered no damage because of the error. In other words, the error did not affect the binding contract entered into between the appellants and the commission company through the agency of White. AILSHIE, J.A rehearing was granted in this case on that particular portion of the original opinion of the court which holds that “the contract was made directly with the commission company and not with White, and on that state of facts the commission company could not be compelled to pay a greater price than it had agreed to pay as per its reply telegram. ” ■
On the reargument of this ease on the point submitted, the controversy- has revolved about the legal proposition as to whether or not a telegraph company in receiving and sending a message acts as the agent of the sender. A determination of this question is necessary to a correct and proper understanding of the principle of law applicable in the determination of the case. We have made a very careful and somewhat extended examination both of the text-writers and the court decisions on this question, and emerge from the investigation fully convinced that the authorities are irreconcilable on the question. This confusion, it seems to us, has arisen out of the endeavor on the part of the courts to determine just what particular settled and established rule of law is applicable and should be invoked in dealing with an entirely *412new agency as applied in business and. commerce. This is a. difficulty which constantly confronts the courts. New inventions are constantly coming into use; new uses, both public- and private, are coming into being; new methods and means, of transacting and carrying on business are applied; and it. is a problem fraught with many difficulties and embarrassments, as the books will readily disclose, for the courts to> apply, in every instance, the correct principle of' law so as to-accomplish substantial justice to all concerned and at the same-time promote the public interests involved.
In the early days of communication by- telegraph when-cases began to find their way into the English and Scotch-courts, it was held by those courts that the law of' ageney-did not apply, and that the company should not be treated as an agent of the sender -of a message, but rather as an-agency of the government. (Henkel v. Pape, 40 L. J. Exch. 15, L. R. 6 Exch. 7, 23 L. T. 419, 19 W. R. 106; Allen’s Tel. Cases, 456; Verdin v. Robertson, 10 Ct. Sess. Cas. (3 Series) 35 (Scot. 1871) ; Allen’s Tel. Cases, 697. To the same effect, see Playford v. Tel. Co., L. R. 4 Q. B. 706; S. C., Allen’s Tel. Cas. 437; Dickson v. Tel. Co., 2 C. P. Div. 62; S. C., 3 C. P. Div. 1.) There the telegraph is under the control' of the government and is operated in connection with the postoffice department (32 & 33 Vict., e. 73), and the cases were apparently-decided on the theory that the government is not responsible-for the negligence, errors or mistakes of its el'erks and servants. In this country there seems to have- been- more- or less diversity of opinion, some of the cases-, and especially the-early eases, proceeding upon the implied, if' not express, theory that the company is the agent of the sender and that the law of agency is the rule of law to be applied in such eases.
Mr. Gray, in his work on- Communication by Telegraph,, written twenty-five years ago, at sec-. 104 says:- ‘‘‘While the-employer of a telegraph company is responsible up-on the-words of a message as delivered, where they are the ones that, he authorized, is he responsible upon them- where, owing to the negligence of the company, they differ materially from the-ones that he authorized? This question is. answered, in the-*413negative in England and in Scotland. In this country, on tbe other hand, it is answered, as a general rule, in the affirmative.
“Courts have rarely considered at length the relationship between a telegraph company and its employer. The view that the employer of a telegraph company is responsible upon a negligently altered message has been rested, it seems, upon two different grounds: (1) A telegraph company is the agent of its employer; consequently, it renders the employer responsible upon any message which it delivers. (2) One who employs a telegraph company employs it to do a certain act,— to communicate a certain message; consequently, he is responsible for the torts of the company committed in the performance of that act. These grounds will now be considered separately and in order.”
In a note to this section the author cites Durkee v. Vermont C. Rd. Co., 29 Vt. 127; Saveland v. Green, 40 Wis. 431; Wilson v. M. & N. W. R. Co., 31 Minn. 481, 18 N. W. 291, with the following comment on those cases: “These cases overlook, it seems, the fact that a telegraph company, in delivering an altered message, does an act beyond the scope both of the authority which the employer actually delegates to it, and of the authority that he holds it out as possessing. ’ ’
Subsequent to the issuance of G-rayV work and in 1891, Judge Seymour D. Thompson issued his work on the Law of Electricity, and in sec. 480 says: “In England and Scotland, the idea that the telegraph company is the agent of the sender to transmit his communication to the addressee, is repudiated.” In see. 481 he discusses and reviews the decision of the supreme court of Tennessee in Pepper v. Western Union T. Co., 87 Tenn. 554, 10 Am. St. 699, 11 S. W. 783, 4 L. R. A. 660, 25 Am. & Eng. Corp. Cas. 542, 2 Am. Elec. Cas. 756, and disapproves the holding which he calls “dictum” in that opinion, and in sec. 482 the author says: “It is obvious, however, that the foregoing principle cannot be of universal application. Many cases will arise where the material fact will be, not what was the message which was delivered, but what was the message which was received. The party who originally sends an order by telegraph makes the telegraph com*414pany his agent for its transmission .and delivery, and, as between himself and the person to whom it is addressed, he is bound by the message as delivered. It follows that where the legal rights of the receiver of the message, founded upon au order transmitted therein, are in question, he is entitled to put in evidence the message actually received as the original. ’ ’
Some seventeen years later, and in 1907, Joyce & Joyce issued the second edition of their work on Electric Law, and in sec. 905 review the conclusion reached by the different text-writers as follows: “Mr. Gray (Gray on Teleg., sec. 104, note 3) states the rule as holding nonagency of the telegraph company in England, and says that the rule here is contra, although he inclines to the English rule (see, also, Scott & Jamigan on Teleg., secs. 340, 341). Judge Thompson (Thompson on Electricity, ed. 1891, secs. 483-487) holds to the rule which makes the sender who telegraphs a proposal bound by the terms of the message as delivered, on the ground of agency of the telegraph company. In other words, the sender must stand by the proposition embodied in the message' as delivered by his agent, and sue the company for the damages he hás sustained by its misfeasance, but he qualifies this by the rule that the party who first invites the use of the telegraphic agency impliedly undertakes to assume the risk of the telegraph company’s mistakes. (This author relies upon Ayer v. Western Union Tel. Co., 79 Me. 493, 1 Am. St. 353, 10 Atl. 495, Western Union Tel. Co. v. Shotter, 71 Ga. 760, Dunning v. Roberts, 35 Barb. (N. Y.) 463, and Durkee v. Vermont Cent. R. Co., 29 Vt. 127, 140.) Mr. Crosswell (Crosswell on Electricity, ed. 1895, secs. 684-687) notes substantially the English rule, and briefly considers the Georgia and Maine eases, and states no rule so far as we can discover.”'
Joyce & Joyce state their conclusion in sec. 907 as follows : “We must confess that we believe there can be no logical deduction from the various principles involved, as to what should be the rule. The determination must contain some element of what is called a ‘moral’ ground, or must be an arbitrary, absolute onel We favor, however, the rulings in *415the Tennessee, and Mississippi cases, but admit there is much force in Judge Thompson’s conclusion, although that conclusion might have been in accord with the Tennessee and Mississippi cases if he had had these eases before him.”
The American courts are by no means in harmony over this subject. Western Union Tel. Co. v. Shotter, 71 Ga. 760, decided in 1884, held unqualifiedly that the telegraph company is the agent of the sender of a message, and that if the message as actually delivered offers merchandise at a less price than the message as written by the sender offered, and the proposition is accepted, the sender is bound by the contract. This rule seems to have been uniformly adhered to by the Georgia courts. (See Brooke v. Western Union Tel. Co., 119 Ga. 695, 46 S. E. 826; Western Union Tel. Co. v. Flint River Lumber Co., 114 Ga. 576, 88 Am. St. 36, 40 S. E. 815; Western Union Tel. Co. v. Cooper, 2 Ga. App. 376, 58 S. E. 517.) The Shotter case has been frequently cited and commented on by the courts and text-writers, — sometimes with approval, sometimes with doubts or express disapproval.
The greater number of cases that have had occasion to consider the question of agency have arisen out of the introduction of evidence, or have in some way involved the question of either what constituted the original message or what was the best evidence. Cases dealing with the admission of evidence or what constituted the. best evidence of the original message are Saveland v. Green, 40 Wis. 431; Durkee v. Vermont C. Rd. Co., 29 Vt. 127; Howley v. Whipple, 48 N. H. 487; Morgan v. People, 59 Ill. 58; Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355; Barons v. Brown, 25 Kan. 410; Matteson v. Noyes, 25 Ill. 591; Cairo & St. Louis R. R. Co. v. Mahoney, 82 Ill. 73, 25 Am. Rep. 299; Williams v. Brickell, 37 Miss. 682, 75 Am. Dec. 88; State v. Hopkins, 50 Vt. 316; Bond v. Hurd, 31 Mont. 314, 78 Pac. 579, 3 Ann. Cas. 566.
Pepper v. Western Union Tel. Co., supra, decided by the supreme court of Tennessee in 1889, is perhaps the most widely cited, exhaustive and well-considered American ease to repudiate the doctrine that the company is the agent of the sender of the message. This case states the English rule and *416reviews the American authorities, and indulges in some independent reasoning and consideration for the rule, and concludes that what is known as the American rule, that the company is the agent of the sender of a message, really rests on the single case of W. U. Tel. Co. v. Shotter, supra. The fcourt concludes by repudiating the agency rule and holds the company as an independent principal.
In 1895 the supreme court of Mississippi was confronted 'with the same question, and in Shingleur v. Western Union Tel. Co., 72 Miss. 1030, 48 Am. St. 604, 30 L. R. A. 444, 18 So. 425, cited, approved and followed the Pepper case, and held that a telegraph company is liable either to the sender or sendee of the message by reason of the delivery of an altered message, — to the sender in contract or tort and to the sendee in tort. This ease holds that the liability of a telegraph company for incorrectly transmitting a message and thus delivering an incorrect copy of the original, is that of an '‘‘independent principal” to either the sender or sendee, whichever may be injured thereby. The Mississippi court calls 'attention to the Shotter case and declines to follow it. To same effect see the later Tennessee ease of W. U. Tel. Co. v. Potts, 120 Tenn. 37, 127 Am. St. 991, 113 S. W. 789, 19 L. R. A., N. S., 479.
In 1901 the Kentucky court of appeals in Postal Tel. & Cable Co. v. Schaefer, 110 Ky. 907, 62 S. W. 1119, had under consideration the liability of the sender of a message to comply with the contract proposed by his message where the message had been changed or altered in the transmission and delivered to the sendee in the changed form. The court reviews the authorities at some length and then says: “This exact question was fully considered in the case of Pepper v. Telegraph Co., decided by the supreme court of Tennessee, and reported in 87 Tenn. 554, 10 Am. St. 699, 11 S. W. 783, 4 L. R. A. 661. In that case the court said, viz.: ‘The minds of the party who sends a message in certain words, and the party who receives the message in entirely different words, have never met. Neither can, therefore, be bound the one to *417tbe other.’ ” To the same effect see Pegram v. Western Union Tel. Co., 100 N. C. 28, 6 Am. St. 557, 6 S. E. 770.
The case of German Fruit Co. v. Western Union Tel. Co., 137 Cal. 598, 70 Pac. 658, 59 L. R. A. 575, is relied upon by-respondent as authority for the contention that Strong & Stark could recover the full market value of this property from the commission company notwithstanding the mistake in the telegram, and that there was no meeting of the minds of the parties. In that ease the plaintiff received a telegram from Cornforth & Co. of Denver, Colo., asking for prices on oranges. The plaintiff thereupon sent the following message: “Offer Los Angeles, San Gabriel, Santa Ana oranges one fifty, Eiverside two sixty.” As received, the message read: “Offer Los Angeles, San Gabriel, Santa Ana oranges one fifty, Eiverside One sixty.” Cornforth & Co. immediately wired for two carloads of Eiverside oranges, which were immediately shipped. After receiving the oranges they paid the fruit company $1.60 per box and refused to pay any more. The fruit company thereupon sued the telegraph company for the difference between the price quoted and that received under the altered message. The court cites no authorities and does not consider the question of agency or whether there was a meeting of the minds of the contracting parties. That ease turns wholly upon the finding of the trial court that Cornforth & Co. knew that there was a mistake in the telegram, and that Eiverside oranges were at that time current on the market at $2.60 per box. The court held that Corn-forth & Co. were liable to the fruit company for the reasonable and market value of the fruit which was $2.60, cmd that knowing that there was a mistake in the telegram they were committing a fraud on the fruit company, and that the fruit company could have and should have recovered the full market price from Cornforth & Co. The case also inferentially holds that the fruit company could not waive its right to proceed against Cornforth & Co. to collect the market value of the property and thereby minimize the loss to all parties, and instead thereof sue the telegraph company for the differ*418ence and allow the purchaser of the fruit “to get'away with a fraudulently acquired advantage” in such a manner. That case turned upon the peculiar facts there involved, and contains no holding contrary to the general principle of law running through the cases heretofore considered. A considera-, tion of this question of agency has been required, and its determination has been necessary in order to ascertain whether-the sender of a proposition to buy or sell is bound to the-sendee if his proposition is incorrectly delivered. If the company is his agent, then of course he is bound by the contract whether the proposition he delivered as given or not, and in-such case the sendee would have to look to the sender for any damages he might sustain, while if no agency exists, there-would be no meeting of minds and no contract in a case where - the company changed or altered the message making the-proposition, and the sendee, if damaged by reason of the delivery of the changed or false message, would be relegated to* his -action in tort against the company for the wrong committed. If it should he conceded that the company is the-agent of the sender of the message, that agency can in no* sense extend to the change or alteration of the message. The agency would be special and limited to the identical message authorized by the sender, and the sendee and everyone else has notice that the company has no authority from the sender-to deliver to him or to -anyone else an altered or changed' message, or one in any manner different from the one filed in the transmitting office. (See foregoing quotation from Gray’s: note to text; Pegram v. Western Union Tel. Co., 100 N. C. 28, 6 Am. St. 557, 6 S. E. 770.)
Our consideration of the authorities and of the nature and' character of the service rendered by a telegraph company, the-public utility it serves and the public character of its existence and the franchise it enjoys, all constrain us to hold that: the law of agency is not applicable and that the company cannot be properly held to be the agent of the sender of the-message. A telegraph company should rather be treated as an independent principal or contracting party and liable as other principals. These companiesare m fact~V5i^sunilai" *419to common carriers, and ought to be treated by the law as it deals with the common carrier. It is true, as said by many of the authorities, that the company is not expected to take the written message as delivered to it and transport it on the same sheet of paper to the sendee, but that is not the test and is an evasion of the real question. What the sender of a telegraphic message wants and expects is that the words, figures or characters of his message',- — -not the paper containing them, — shall be delivered to the sendee exactly as expressed by him without change or alteration. He asks the company to become the transmitter or carrier of the inquiry, proposition, news or intelligence contained in his message, and for this purpose makes the contract and pays the toll or rate established. This is the service of a common carrier. The only difference of any consequence which we can discover is that the telegraph company is not an absolute insurer of the literal accuracy of delivery of every message under all circumstances, yet in this the difference is not so great as was supposed twenty-five years ago. Indeed, the books disclose that telegraph companies were not held to anything like the degree of accuracy a few years ago as is now required of them, and this is at once apparent. Telegraphy had not been developed and perfected then to anything like the exactness, either mechanically or scientifically, that it is now.
Having determined that the telegraph company was not the agent of Strong & Stark, it follows that there was no meeting of the minds of the contracting parties as to the price for which the cattle were to be sold, and that Strong & Stark had a right to reclaim the same upon learning of the mistake made in the delivery of their proposition. They received a draft from White, the agent of the commission company, and shipped the cattle, and did not learn that any error had been made in the transmission and delivery of their message until after the draft had been presented and the commission company had refused to pay any greater rate than $3.25 per hundred. While there is no evidence in the record which shows just where the cattle were or what had become of -them at the time Strong & Stark received the information of this mistake *420and the refusal of the commission company to pay $3.95 per hundred, still it is apparent that they had already been shipped and that they had very likely been received at the stockyards and perhaps sold and possibly butchered. This, of course, is somewhat conjectural from the present record. It is clear, however, that the freight rates and expense of shipping had already been incurred, and that if the shippers should have reclaimed their property they had still incurred a large expense which they must necessarily take into consideration as prudent and' reasonable men if they should have refused to allow the commission company to retain the stock at $3.25 per hundred which the latter had promised and agreed to pay. Whatever damage and loss may have been sustained by the sellers of this property on account of the transaction is directly traceable to the tort committed by the telegraph company in delivering to the commission company an altered and false message. As said by the court in Pepper v. Western Union Tel. Co., supra, “they [Strong & Stark] were bound to have taken just such steps as a reasonable prudent man would take to save himself had the mistake or error been his own. A man, under such circumstances, is not to be held to have done the wisest and best thing but to the exercise of reasonable skill and diligence. Whether he so acted or not is a question of fact to be left to the jury under proper instructions by the court.” The question would necessarily present itself to the sellers of the property the minute they learned of this mistake and of the condition under which the purchasers had accepted the proposition as to what was the best thing to do in order to minimize the loss and damage,— whether it was better to let the purchasers take the property at the price they had proposed to pay and then look to the tort-feasor (the telegraph company) for their damages, or to reclaim the property and seek another purchaser. It may have been impossible to reclaim the property, as it may have been used or consumed or so dissipated that it could not have been found or identified; or the expense of reclaiming it and securing another purchaser might have exceeded by far the difference between the price as named in the proposition and *421that named in the message as delivered by the telegraph company to the purchaser.
These questions are all proper matters to be submitted to the jury in ascertaining, the damage to 'be awarded. These phases of the question are very clearly and learnedly discussed and considered in the closing portion of the Pepper case. (See Hocutt v. Western Union Tel. Co., 147 N. C. 186, 60 S. E. 980, and cases there cited.) Since this case must go back for a new trial, it is proper to say here that the measure of damages is not the difference between the price proposed in the telegram delivered by Strong & Stark to the respondent and that given in the message as delivered to the livestock company. On the contrary, the measure of damages in this ease would be the difference between the market value of the property on the day of sending the telegram and the price paid by the livestock company in accordance with the telegram as delivered to them. The price of $3.95 as fixed in the telegram filed at Soda Springs may have indicated the correct market price on that day, but since there was no contract made and no meeting of the minds as to the price, it could not be said as a fact in the absence of proof that Strong & Stark could have procured this price for their property, nor can they say with any degree of certainty that the livestock company would have accepted the proposition had the message been delivered quoting that price. It is true, as said in the Pepper case, that this telegram might be taken as prima facie evidence that such was the market price on that day. (Western Union Tel. Co. v. Crawford, 110 Ala. 460, 20 So. 112; Bowie v. Western Union Tel. Co., 78 S. C. 424, 59 S. E. 66; Barker v. Western Union Tel. Co., 134 Wis. 147, 126 Am. St. 1017, 114 N. W. 440, 14 L. R. A., N. S., 533.)
This brings us to the concluding and ultimate proposition for which the respondent contends in this case, and that is that a contract was in fact made between Strong & Stark and the livestock company independently of the communication by telegraph. White was apparently a purchasing agent for the commission company and was at Soda Springs on the date this telegram was sent. He had been negotiating with the *422appellants concerning the purchase of this stock, and the state of the negotiations is given by Stark in' his testimony as follows: “On or about the 6th day of March, 1907, we sold to the Colorado Livestock & Commission Company a lot of cattle. We were negotiating the sale with W. L. White who was agent for the Colorado Livestock & Commission Company; he was acting as their agent; we agreed to sell the company quite a number of cattle, beef steers. I do not remember the weight of the steers; they weighed something near 1,000 pounds; we at this time agreed with this agent as to the price per hundred-weight, that is to say, $3.95 per hundred-weight; this was net with two per cent shrinkage; I agreed with the agent on the price for the cattle, and then went and sent a message to the company to find out whether the agent was responsible or not.” It will be seen that the respondents up to the time of sending the telegram had been negotiating with the commission company through the medium of their purchasing agent, White. They had apparently reached an agreement as to the terms and conditions of the sale, but the vendors of the stock evidently had some question as to the authority of the agent in some or all respects, and so they sent the telegram set forth in the original opinion in this case. The commission company, on the other hand, instead of advising vendors that they would abide by any agreement made by White, wired the vendors, “Will honor draft as per telegram if cattle are billed to us.” The “telegram” referred to in this reply as it had been delivered to the commission company quoted the cattle at $3.25 instead of $3.95 as had been agreed upon by the vendors and White. This communication by wire taking place between Strong & Stark, the vendors of the property, and the commission company, the purchasers, was an attempt at abrogation or modification by the principals themselves of the contract which had been entered into by the principal on the one hand and the agent of the company on the other. It relegated the parties to the terms of the new or modified contract. It would be quite a different proposition had White been negotiating and contracting with the vendors of this property as a principal himself; in that *423case a contract would' have been closed and consummated, but since be was dealing as an agent for a principal, and tbe party with whom he was dealing and his principal subsequently took up the negotiations themselves, they might cancel, affirm or modify the contract as they saw fit, and the subsequent affirmance, modification or cancellation of the contract would be binding on both the principals. The principal could take the matter out of the hands of his agent either in whole or part, and if concurred in by the other contracting party would leave the two contracting parties to the new status to be fixed by them.
We conclude, therefore, that in this ease the contract made between Strong & Stark on the one hand as principals and White on the other hand as agent for the commission company was subsequently abrogated by the principals themselves, and that by reason of the tort committed by the telegraph company in altering the communication there was finally no meeting of the minds of the contracting parties.
For the foregoing reasons, the original opinion in this case must stand as the opinion and judgment of the court. The judgment of the trial court must be reversed and the cause remanded with direction to grant a new trial. Costs awarded to appellant.
Sullivan, C. ’J., concurs.