The appellee sued the appellant in a complaint of two paragraphs. In the first paragraph the appellee sought to recover the statutory penalty, and also special damages,.for the appellant’s failure correctly to transmit a telegram. The second paragraph was to recover the statutory penalty for failing to transmit the same message.
The appellant answered specially. The appellee’s demurrer to the answer was sustained; the appellant excepted to the ruling, and, declining to answer further, judgment was rendered in favor of the appellee for $150. The telegraph company excepted to the judgment and appealed to this court.
Errors assigned here are, that neither paragraph of the complaint states facts sufficient to constitute a cause of action, and that the court erred in sustaining the demurrer to the answer and in rendering judgment for the appellee.
*196The dispatch in question, as is averred in each paragraph of the complaint, was sent from the appellant’s office in Chicago, Illinois, by Millmine, Badman & Co., of that city, to the appellee at Saint Paul, in this State. .
The complaint is wholly insufficient to recover the statutory penalty for two reasons:
1. The law of the place from which a message is sent governs its transmission. Statutes prescribing penalties, or conferring rights of action, are limited in their application to the States in which they are enacted. A telegraph company is not subject to the penalty prescribed by our statute for failure to transmit a dispatch, sent from a place without, to a place within,this State. Carnahan v. Western Union Tel. Co., 89 Ind. 526.
2. The appellee did not send the telegram; it was sent to him-. The sender alone of a dispatch can maintain an action to recover the statutory jjenalty. Section 4176, R. S. 1881; Western Union Tel. Co. v. Pendleton, 95 Ind. 12.
•The want of care, shown in drawing the first paragraph of the complaint with respect to the claim for special damages, was owing to the fact, no doubt, that the appellee’s reliance for a recovery was based principally upon the penal provision of the statute. The averments to support the demand for special damages are substantially as follows: The appellee was a general dealer in buying, selling and trading in grain of all kinds at Saint Paul, this State. He had in an elevator in Chicago 10,000 bushels of oats for sale in the care of Millmine, Badman & Co., grain merchants, doing business in that city. On August 12th, 1882, said merchants sent from the appellant’s office, in Chicago, to the appellee at Saint Paul, a message informing him that they had sold his oats at thirty-five and three-fourths cents per bushel.
The message was changed in transmission by the appellant’s negligence, so as to inform the appellee that the sale was for thirty-five and one-fourth cents per bushel. The ap*197pellee did not, as is alleged, countermand the sale, as he would have done had the message been correctly sent and delivered by the appellant, but permitted it to stand, thereby claiming to lose one-half cent on each bushel of oats, making his whole loss $50. If presumptions were to be indulged, outside of the record, it might be supposed that there was a mistake either in the complaint itself or in the copy of it in the record, and that what the appellee did say, or intended to say in his complaint, was that the dispatch, as sent by the Chicago merchants, announced the sale of the oats at thirty-five and one-fourth cents per bushel, but that, as received by the appellee, it informed him that the sale was made at thirty-five and three-fourths cents per bushel. In such case it can be seen how the loss complained of might have occurred. But we are bound by the complaint, as it comes to us in the record, and, as thus presented, it is apparent that it makes no-case for special damages upon the ground stated. It appears-from the averments of the complaint, that the charges 'for-transmitting the message were paid by the parties sending it. The appellee’s complaint, therefore, is not good even to recover for such charges.
Filed May 13, 1884.No brief has been furnished us by counsel for the appellee.
It is due to the learned judge who presided at the trial below to say that the record fails to show that' his attention was called to the defects in the complaint. Although in such case the trial judge may presume that the plaintiff’s counsel was sufficiently careful of his client’s interests to draft a good complaint, yet, under the statute, an objection for want of sufficient facts may be made to the complaint for the first time in this court, and where, as in the present case, the objection is well taken, we are compelled to reverse the judgment.
Reversed at appellee’s costs, with instructions to the court below to dismiss the case unless the complaint be amended so as to state a good cause of action.