dissenting. I think the court erred in awarding a nonsuit. The plaintiff is always entitled to recover when he proves his case as laid. Kelly v. Strouse, 116 Ga. 872, 881 (43 S. E. 280); Moore v. Central Ry. Co., 1 Ga. App. 514 (58 S. E. 63); Pendleton v. Atlantic Lumber Co., 3 Ga. App. 714 (60 S. E. 377). In the performance of its public' duties as- a public-service corporation a telegraph company is'liable for at'least nominal damages upon proof of any failure to discharge such duties. Glenn v. Western Union Tel. Co., 1 Ga. App. 831 (58 S. E. 83). The petition contained no allegation with reference to the written notice of claim for damages, which the contract required to be presented in writing within sixty days. There was no. demurrer to the petition. There was ho plea setting up, in defeasance of the plaintiff’s right of action, the contention that no written claim for damages had been presented within the time stipulated. In the absence of demurrer and plea, the parties went to trial, waiving in open court, as I see it, any contention whatsoever in regard to the sixty-days notice of the claim for damages. A waiver can as well be implied from- failure to demur and plead as from the circumstances referred to in the numerous cases decided by the Supreme Court and this court. The plaintiff proved his ease as laid, and for that reason the award of the nonsuit was erroneous. Furthermore, in view of the defendant’s failure to demur or plead as to the failure of the plaintiff to give written notice, it was, in my opinion, an abuse of discretion on the part of the trial judge to refuse to open the ease and permit him to prove that he had given notice as required by the contract. See Ellenberg v. Sou. Ry. Co., 5 Ga. App. 390 (63 S. E. 340).