The opinion of the court was delivered, July 3d 1867, by
Thompson, J.— The broker of the plaintiff below, ordered the I purchase of certain stocks in New York for him, by telegraph, on | the 10th October, 1864, and having prepaid the charges gave the j message to the defendants for transmission to his correspondents | named therein. The message it appears got no further than \ Philadelphia, although the defendants’ line extended to Portland, Maine. No such reason as thelaw would recognise, indeedno reason), at all, was given for the failure to transmit the message to its destination. Thus, was there presented a clear case of gross negligence against the company in performing its undertaking, and a consequent liability to the plaintiff for such damage as he had' sustained in consequence thereof. The stobk ordered was of course not purchased on the day the despatch was given to they company to be transmitted, as it might have been, for it was not' pretended it was not in the market; but three days thereafter it was procured at an aggregate advance of $462.50. This differ-1 ence, the plaintiff claims, is the damage lie has sustained and) entitled to recover. Undoubtedly, this is the measure of damagecin this case. The despatch was such as to disclose the nature of / the business to which it related and that the loss might be very t likely to occur if there was a want of promptitude in transmitting \ it containing the order. In this respect it differs much from that in, Landberger v. The Magnetic Telegraph Co., 32 Barb. 550. “ Get ten thousand dollars of the Mail Company,” the message in that case said, but did not disclose that the money was to be gotten from the Mail Company, to save from failure a valuable contract; hence it was held, that the damages arising from that cause could not reasonably be presumed to have been in the contemplation of the parties to the contract or not recoverable to that extent.. Here the object of the message was for the purpose of buying stock as soon as received; no other time being named, and it is not possible, consistently with any knowledge of the business of dealing in stocks, to fail to understand that damage might ensue, nay, would be likely to ensue, by delay. The damage from such a source was what would naturally have entered into the minds of the sender and the undertaker to send the message if they thought on the subject at all; and that they did think is true, if the witness was credible, and whose uncontradicted statement is,' that he notified the operator that he would look to the company for damages if they failed in transmitting the message. The rule laid down by the learned judge as to the measure of damages was all right enough, and therefore in accordance with settled principles.
But there is one matter in which we think the court erred, *268although it has scarcely received the attention of a passing notice by the counsel for the defendant in error, and that was the admission in evidence of the declarations of O’Brien & Co., as offered tó be proved by Reid, in order to show why they did not buy the stock on the receipt of the letter from the plaintiff’s agent, containing a repetition of the telegram. That was received before business hours on the morning of the 11th, but they did not act upon it, and did not buy the stock until after the receipt of a telegram on the 13th. The witness was allowed to state these reasons against the objection of the defendants. Their letter from which the witness learned these reasons was also offered and received. We cannot see upon what grounds this testimony was admissible. O’Brien & Co. were competent witnesses. In fact their testimony had been taken and used in the ease as to other matters, but not on this point; it should have been taken as to this matter also. Their declarations were not res gestee in regard to the contract to send the message ; — they touched a different point, viz., performance. Not being receivable on this ground, it is manifest they were not on any, and in receiving these unsworn statements, the court, in our opinion, erred. We reverse, therefore, although reluctantly, on this ground; for it is altogether probable that sufficient reasons will be shown by these men when their testimony is taken, to account for their non-action on the receipt of the letter from the plaintiff’s broker on the 11th of October 1867.
There was no error reviewable in this court, for refusing to nonsuit the plaintiffs as claimed by the defendant. And if it were reviewable, a better reason than the one assigned for it would have been required. The company’s corporate existence was not in issue by the pleadings. Besides, the testimony showed beyond controversy, that the company which undertook to transmit the message was the one sued, and was the defendant in the case.
Nor was the refusal to strike out evidence, the subject of exception. The evidence being in without exception, the only mode of repairing the damage was to request the court to charge that it be disregarded. On this, as well as on the point preceding, we have several times lately declared the rule- to be as now stated.
There was no error in refusing to hear testimony “ that there was no certainty that the stock could have been purchased at the quotation prices, on the morning the telegram was received.” Had the proposed testimony assumed the position of a fact in this particular case, it would have’ been evidence. It was but opinion, and did not tend to disprove the prices current sworn to, and was not evidence. There is no error in any portion of the case *269but that indicated above; but on account of that we are constrained to reverse.
Judgment reversed, and venire de novo awarded.