ON REHEARING.
ESTOPINAL, J.(A further examination of this case has *83served to confirm us in the correctness of the conclusion reached in our original opinion.
Counsel for plaintiffs now directs our attention to the fact that our former opinion was, in a measure, pitched upon the question of contributory negligence, an issue not seriously urged before us, though found in the pleadings.
Counsel has made it plain to us that in this we were in error, our appreciation of the facts upon which this branch of the case was considered being manifestly erroneous.
The defendant in its pleadings charges that the plaintiffs had knowledge of the meaning or significance of certain numbers appearing on the face of the telegram which are intended to indicate the number of words which the message should contain, and on this particular message the number “12” appearing, this was notice to the plaintiffs, the message containing as it did, only nine words, that the same was short three words.
Our first examination of the testimony led us to the belief that this defense was supported by proof, but we now realize that in this we erred and readily appreciate the reason for the failure of astute counsel for the telegraph company, to urge the defense of contributory negligence in this Court.
The evidence shows plaintiffs or their agent had no knowledge of the meaning of the various notations which appeared on the face of the message and in consequence cannot be charged with negligence for failing to call defendant’s attention to the deficiency in the message, and thereby miminize the damages.
This was a cipher message, written in words entirely unintelligible to the defendant who had no knowledge of their significance. Even if this record shows, as contended that defendant was familiar with the nature of the business conducted by plaintiffs, we hesitate, in view of the jurisjrudence on the question, to hold that implied knowledge, as in the instant case, gathered or to be inferred from a general knowledge of prior dealings or methods, is sufficient to charge the Telegraph Company with that knowledge of the import of the cypher message which would take this case out of the category, of leading cases in this and other jurisdictions on this point.
In Primrose vs. Western Union Telegraph Company 154, U. S. p. 1, the Court says:
“In the present case, the message was, and was evidently intended to be, wholly unintelligible to the Telegraph Company *84or its agents. They wer.e not informed, by the message or otherwise, of the nature, importance or extent of the transaction to which it related, or of the position which the plaintiff would probably occupy .if the message were correctly transmitted. Mere knowledge that the plaintiff was -a wool merchant, and that Toland was in his employ, had no tendency to show what the message was about. According to any understanding which the telegraph company and its agents had or which the plaintiff could possibly have supposed that they had, of the contract between these parties, the damages which the plaintiff seeks to recover in this action for losses upon wool purchased by Toland, were not such as could reasonably be considered, either as arising, according to the usual course of things, from the supposed-breach of the contract itself, or as having been in-contemplation of both parties when they made the contract, as a probable ant would be powerless to disprove it.”February 24, 1908.
Following the doctrine ennunci-ated in the case cited supra, we are of opinion that mere knowledge- that the plaintiff in the present case was a cotton merchant or broker and that the receiver of the message was either the agent- or partner of plaintiff’s, had no tendency to show what the message was about or that the message concerned a business transaction and that negligence .in its transmission might be -attended with pecuniary loss:
In Jovite Cau vs. Postal Telegraph and Cable Company, 3 C. of A., Report p. 12 this Court, said:
“A cipher message, unintelligible in phraseology and giving on its face no warning of possible- consequential damages, in case of non-delivery, might form the basis of a claim for an amount of a character all the more exhorbitant that the defendant would be powerless to disprove it.”
Plaintiff -complains that price of the message should have been allowed even though not prayed for in his petition.
True the telegraph company in its contract admits its liability for the cost ¡of the message, but'when the cost is not, shown in either the petition, the admission in the answer, or the evidence, the Court is unable to ascertain it and therefore powerless to grant it.
Our previous decree remains undisturbed.