The plaintiff, liquidators. -of Hclford Minoprio & Company, of this City, and Minoprio Holford & *80Company, of Liverpool, England, both composed of the same individuals, the former being engaged in the cotton export business in this city, and the latter, in the cotton business in Liverpool, England, claim of the defendant $440.82, which sum they-aver represents the loss suffered by them by reason of the omission by the defendant company of three words in a cipher cablegram sent by the Liverpool firm to that in this city.
For the purposes of this opinion it is not necessary to state in detail the averments of plaintiff’s petition and the. várious items of damages recited which go to make up the aggregate amount claimed.
The cable message, as delivered to the defendant in Liverpool, contained the following twelve words:
“Holminop, New Orleans, Galeistraf, dipnoi, Granzoso, Liebsesin Dipnoi liciatorum,” diomus, grapholite, Gradatos and Texas.
The three words omitted are: • Dipnoi, Granzoso, Liebsesin, which, translated into English mean: “We make firm bid two hundred bales of fu'ly middling cotton at 4 3-4d twenty-eight millimeters, January and February delivery, shipment to Havre."
When the omission was discovered another message was sent, and the order was filled. Three days had elapssd since the sending .of the message in which were the omitted words, and the market price of cotton in the meantime had gone higher. The quantum of damages is predicated on the difference in price of cotton on the day that the message complained of was sent, and its price three days later. Plaintiffs claim additionally the expenses of extra cablegram in connection with the transaction, but no demand is made for the price of the original cablegram.
Defendant pleads the general issue, and then specially sets up the defense that the London firm, sender of the message, having signed the conditions on the back of the message that this operates as a bar to plaintiff’s action herein. The de-fandant further pleads that if it was guilty of any negligence, then, and in, that event, the plaintiffs were guilty of contributory negligence, and cannot recover for this to-wit:
“That the message as delivered to defendant in Liverpool, contained twelve (12) words, and that the message as delivered in New Orleans, contained only nine words, but also contained on its face the number “12” under the word “words,” that said *81notation is always placéd under cablegrams delivered by defendant, and indicates the number of words of which the original cablegram consisted, and defendant charges plaintiffs with knowledge of this custom and its meaning, they having been for many years in the cotton business, buying and selling, and conducting such transactions by cablegram through the office of defendant.
We have searched this record with great dilligence to' discover whether or not the defendant had knowledge of the import and nature of the message, or whether from any circumstance of this case the defendant was charged with knowledge of the character of the message. We confess that we have been unable to find this either in the testimony or. in the pleadings. The plaintiff’s side has been ¡presented with marked ability, the counsel urging upon us with great force that this case is differentiated from similar suits decided by this Court, the Supreme Court of this State, and other jurisdictions, by reason of the admission in defendant’s answer. That by admitting in its pleadings that plaintiffs had been long in the business of buying and selling cotton, and of conducting and transacting same by cablegram through the office of defendant, &c., the defendant must be charged with the knowledge of the nature of the message. At first blush this argument appears to have some merit, but a reading of the answer discloses • that defendant does not aver that . cipher messages were sent by plaintiffs, non-oonstat that all the messages, that went before were open messages, non-constat but that the cipher message under discussion was the only one ever sent by plaintiffs.
Reference to the testimony fails to inform us whether or not plaintiffs had sent other ciphei messages before. Had defendant expressly said in his answer that plaintiffs had for many years been irl the habit of sending, in relation to their business, cipher messages, perhaps a different case would be presented about which we are not now called upon to express ourselves. We do not think therefore that the respondent has made the character cf admission which in any way differentiates this case or benefits plaintiffs from those decided by this Court. It appears to us that the defense of contributory negligence set up, has much force. It is not denied by plaintiffs that they sent many messages through defendant, nor do they deny that they were familiar with the meaning of the number placed on the *82cablegrams to indicate the number of words that the message should contain. Defendant received a message containing twelve words, sent the message short of three words, but placed the number “12” on the message. Uuder the showing made, plaintiffs were charged with knowledge that the message was not complete, and it was their duty in order to minimize the damages to at once take steps to ascertain the reason for the obvious, to them, discrepancy in the message, and thereby minimize the consequent damages.
June 21, 1907.From the record before us we are unable to draw any line of difference between the case at bar and similar cases decided by us, and the same doctrine enunciated in Jovit Cau vs. Postal Telegraph & Cable Company, and Stewart Carnal Company vs. The Postal Telegraph Company, recently decided by this Court, and in which the Supreme Court refused a writ of review, must be applied here. To the proposition urged counsel that the action is one ex-delicto, we need but refer to the case of DeGrange vs. Southwestern Telegraph Company, 25th Annual 383-4, where the Court holds that a telegraph company is both the agent of the sender and receiver of a message, ’and the action arises ex-con-tractu and not ex-delicto. Plaintiffs make no claim for the price of the message, and if they had, there is no evidence establishing the amount paid, consequently, we are powerless to give it. The claim for-the expense incurred to correct the error for which the defendant was responsible, must also be rejected.
This was a cipher message. In the cases cited supra, decided by this Court, and in Primrose vs. Western Union Telegraph Company, 154, U. S. 1, it has been held that when the message was of that character (cipher), the only damages deemed to be within the contemplation of the parties is the price of transmission. Therefore, the price of the original message must be rejected, because not claimed, and the claim'for the price of other messages made necessary by error in the first, is disallowed, because not within the contemplation of the parties.
The judgment appealed from must be affirmed.
Moore, J., not having heard the argument, takes no part.