delivered the opinion of the court, March 12th 1883.
This record presents the single question whether the court below erred in entering judgment non obstante veredicto in favor of the defendants upon the reserved points.
The plaintiffs in error allege that the reserved questions are based upon the facts submitted to the jury by the charge of the court, to the extent that this is the case the reservation is bad. There can be no such thing as reserving the question of law based upon disputed facts. It was said by Sharswood, J., in Wilde v. Trainor, 9 P.. F. S. at page 442: “ There are two rules necessary to be observed in such reservations. The first is, that they can only be of pure questions of law. In order that such questions may be reserved, it is requisite that the facts be agreed by the parties or found by the jury. The second rule is, that the question or questions of law must be such as to rule the case.” Several authorities were cited by Justice Sharswood in support of his text. There are a number of our recent cases which sustain this ruling, but the principle is too familiar to need further reference to authority.
If we apply this rule to the present case it is apparent that some of the questions were not properly reserved, and had the reservation been excepted to a judgment entered for the defendant upon them could not have been sustained. If a reserved point is based upon facts that are not conceded, it is the duty of counsel to except and thus warn the court of what may be an unintentional mistake. As was said by Sharswood, J., in Insurance Company of Pennsylvania v. Phœnix Insurance Company, 21 P. F. S. 31: “Very great injustice might be done if a party not objecting at the time of the reservation should be permitted afterwards to take the ground that there was no evidence of the facts or that they ought to have been submitted to the jury.”
It is not necessary to inquire whether the reservations referred to are incurably defective, for the reason that the objections referred to do not apply to the last question, which was as follows: “ That there is no evidence of negligence on the part of the defendants, or on which they can be made answerable.” It was urged, however, that this was a bad reservation under the ruling in Ferguson v. Wright, 11 P. F. S. 258, where it was held that it is not a good reservation of a point to reserve *170it on all the evidence.” There is no doubt under the authorities that such a reservation would be bad. In the case in hand, however, the reservation referred to is not open to this objection. Whether there is any evidence at all to go to the jury upon a particular fact essential to the plaintiff’s case is a question of law and may be reserved: Wilde v. Trainor, supra. The question here was whether there was any evidence of the' defendant’s negligence to go to the jury.
We are of-opinion that this question was properly reserved, and that in entering judgment non obstante thereon in favor of the defendant the court below committed no error. Upon the evidence the learned judge would have been justified in giving the jury a binding instruction to find for the defendants. There was no proof to charge them with negligence, not even a scintilla. Had the order of Heverin to the plaintiffs of August 26th 1879, been sent by mail instead of by wire, the plaintiffs would have been justified in treating it as an order to “ sell ten thousand more, same price.” It is immaterial what Heverin intended. As written it is ten thousand if it is anything. It is at least much more like “ ten ” than “ two.” If there was any negligence in the-case it was on the part of Mr. Heverin in sending an order to sell ten thousand when he only intended to sell two thousand. The defendants are hot responsible for Heverin’s mistake. Moreover, the question was a proper one for the court. The facts bearing upon it were not disputed. The original of the telegram was before the court* and what was contained therein could only be determined by inspection. That was the duty of the judge who tried the cause. It is difficult to see how a jury could aid him in this matter. They might indeed find that ten meant two, but this would neither aid the judge nor advance the cause of justice.
It was the duty of the defendant company to transmit the message accurately. Having sent it as written, the addition of the figures 10,000 was of no importance. It did not vary the sense of the message. And had the message been repeated it would not have'-led to the correction of the error, for the reason that it had been sent precisely as written.
The cases are numerous that upon an undisputed state of facts it is the province of the court ’to pass upon the question of defendant’s negligence. It is sufficient to refer to Hoag v. The Railroad Company, 4 Norris 293; King v. Thompson, 6 W. N. C. 241; Central Railroad Company v. Feller, 4 Id. 160.
Judgment affirmed.