Daly, F. J.—This
This action was brought to recover damages a delay on the part of the telegraph company in delivering' a message in Providence, by which the plaintiffs lost the <•••,: ,■ iunity of attaching a house and lot in that city, belor.gmA •’ one Benued, a member of the firm of J. H. Stury A ( who were indebted to the plain tins in the sum of twelve A sand dollars. - '
The property of Bonnet! could be attacked at the sir: creditors only while he was without the State ot Xih-vle !-• He was seen in tl-.e city of FT evo York by Draper, on-1 plai:mí¡% on the 2 Ah of February, 1800, and left by in - o’clock afternoon train of that day for Providence, Ah -« ■ [577]*577teen minutes past four, Draper learned that the firm were not able to meet their engagements, and that Bennett was on his way to Providence, upou ascertaining which, he went to the plaintiffs’ attorney, and directed him to send a dispatch to Providence to have Bennett’s house and lot attached for the debt. At half-past eight o’clock in the evening, the attorney went to the telegraph office of the defendants, in this city, which was then closed for the ordinary transaction of business, • ' and asked if the line was open to Providence, and if a message could be sent there without delay. The clerk who was in attendance answered in the affirmative, upon which the attorney told him that the message was important, and unless it could go there “right away, and he delivered at once,” it would be of no use. The cIp* sured him that it could be sent and delivered as he wish 1 gave the attorney a printed paper containing the cc upon which the defendants agreed to transmit messages, and subject to which the attorney wrote down the message to be sent. It was addressed to a Mr. Payne, an attorney in Providence, directing him to sue J. II. Stury & Co.j at the suit-c-f the plaintiffs, for twelve thousand dollars upon promissory notes, and to attach Bennett’s house'and lot in Providence, advising him that it must be done before the Stonington train entered the State of Itbode Island. The attorney then told the clerk that the object of the message was to get an attachment upon property ; that unless it was made before the Stonington train reached the State line, it would do no good, and that under such circumstances, he would see the importance of the matter, and why he, the attorney, was so urgent io know whether the message could be carried and delivered “right away.” The clerk answered that of course it would go right away, and that hu would not take his money if he thought there was any doubt about it. The attorney then paid 1dm three dollars and eighteen coins ; the clerk took the message to the operator, and after being absent a, few minutes, returned and said : “ It is half off on its way, and it will be there right .off.” It was then, ten minutes past nine o’clock. Tbe nw-siago wuj received by the ororasor In Previeses thirty minutas past nine, with, a direction from the operator hi New York to send it in haste. The operator in Providence was then engaged in recering reports for the press, [578]*578which by statute are entitled to precedence oyer all other matters, and the operator then replied that the message could not be sent that night, as the delivery boy had gone home. The operator in New York responded that it must he delivered, and the other answered O. K.s a sign expressive of his concurrence. The operator in Providence was engaged without cessation in receiving newspaper reports until half-past eleven o’clock, when availing himself of the cessation of the reports for awhile, lie had the message copied, and a person coming in at the time with refreshments, ho sent it by him to Hr. Payne, a few minutes after half-past eleven. Mr. Payne was aroused from his bed, and the telegram delivered to him, but it was then too late to have the attachment made before t? of Bennett in the State.
The house and lot which the plaintiffs mea attach was worth over twelve thousand dollars. There a mortgage upon the lot for ten thousand dollars, but the mortgage had not been recorded, and it would seem that by the laws of Rhode Island an unrecorded mortgage is no lien against an attachment. Within a few days afterwards the mortgage was recorded, and during the same month the firm of J. H. Stury & Co. went into bankruptcy in Massachusetts. The house and lot was sold under the mortgage for twelve thousand dollars and twenty-five cents, and all that the plaintiffs have received-upon their debt has been five hundred dollars. Upon this state of facts they obtained a verdict against the defendants for twelve thousand one hundred and forty-five dollars and fifty-five cents, being the amount of their debt and interest, less the five hundred dollars collected by them.
The defendants moved for a nonsuit, upon the ground that they were not responsible, as this was an unrepeated message.
The printed conditions state that in order to guard against mistakes in the transmission of messages, every message of importance ought to be repeated by being sent back from the station at which it had been received, to the station from which it was originally sent. The company also limit their liability for mistakes or delays in the transmission or delivery of repeated messages to an amount not exceeding five hundred times the amount paid for sending the message, and it is further provid--! that the company will n.A be responsible for mistakes or delays [579]*579in the transmission of unrepeated messages from whatever cause they may arise.
It is apparent from the wording of the conditions, that there is a distinction between the transmission and the delivery of a message; that the first means its transmission from the office or station at which it is received, to the one to which it is sent; and the other, the delivery of it to the person to whom it is addressed. The clause relating to messages which are repeated, refers to mistakes or delays in their transmission or delivery, while that which relates to unrepeated messages refers to mistakes or delays in their transmission alone. What is obviously meant by the latter clause is, that the company will not be responsible for any mistake or, delay in the transmissi 3s-sage, unless it is repeated, which has no applicatic his case, as there was no mistake or delay in the transnh of the message, hut the delay was in the delivery after ic had been correctly transmitted. That the message 'had not been repeated, therefore, furnished no ground for granting a noñsuit.
The defendants also moved for a nonsuit upon the ground tliat the plaintiffs had not shown that they had exhausted all legal remedies against their debtors by judgment and executian, but this was a matter which related merely to the amount of the damages, and did not affect the right of action. The motion for a nonsuit was therefore properly denied.
When the evidence was closed upon both sides, the defendant renewed his motion for a nonsuit upon the ground that the failure of the plaintiffs to issue their attachment in time was ovdng to the want of proper diligence on the part of the afctorney in Providence. This was a point, however, upon which there was a large amount of conflicting testimony, and the question was one which the jury alone could decide.
Before submitting the case to the jury, the judge was requested to instruct them that the only damages which the plaintiffs could recover was the amount paid by them for sending the message, and such other expenses as were incidental to it, and that the value of the property which the plaintiffs meant to attach was not the measure of damages. The judge declined so to do, and at the close of his charge said to the jury, that if they found for the plain Link, che amount of damages should he the sum which the plaintiffs lost by' not having the property [580]*580attached, namely, twelve thousand dollars, less the five lv.n> dred dollars which they had collected, with interest, from the day when the telegram was sent. The property was sold after-wards for twelve thousand dollars and twenty-five cents, an-t tliis was making the value of the property to the extent .-f tim plaintiffs’ debt the measure of the damages, which v„-s I think, erroneous. It was implying that if this dvhiv had not taken place in the delivery of the message, the attachment would have been made before Bennett returned r.> the State, and that if that had been the case, the plaintiffs would have obtained their debt.
This was assuming many contingencies that might or m'ght not happen, viz.: that the attachment would have be-en U.-iu-d and levied in time, that all the proceedings upon it would L.-ivv been regular, that the plaintiffs would have obtained a ja ! ment, and that twelve thousand dollars would have ¡u- u - leeied upon the execution and paid to them, in satisfaction -f their debt. All this might have happened, but that it w.-A was not sufficiently certain to warrant the assumption of all these circumstances, as a basis for the measure of damyg. \ 1? was, as Judge Stout remarked in the case of The Schoo v. Lively (1 Gallison R., 314), “a calculation upon conjecture-, and not upon facts.”
The plaintiffs have not lost anything which they ever possessed. They lost the chance of availiifg themselves of a newly discovered and extraordinary means of transmitting intollig-iu-.j which, in their case, had their message been delivered as they wished, might have enabled them to take advantage of the circumstance of the temporary absence of their debtor, and attach his property for the amount of their debt. Arsuming that that would have been done had their message been delivered immediately after its arrival in Providence, the *mlv conclusion which it would warrant would be simply that th--y lost such security for the collection of their debt as would afforded by the issuing and levying of an attachment, but -jv r; thing beyond that was mere matter of conjecture. For all r.: was known to the jury, the debtors may have had a (L-tvi..-. '■* the claim in whole or in part. It does not follow becau.attachment is procured that a judgment will also be ubw : yet that «resumption has to he drawn in ibis case to v, .vr[581]*581the still further presumption, that the plaintiffs lost their debt because they did not obtain the attachment.
Tire plaintiffs’ debt has not been extinguished or discharged. They cannot he said to have lost it absolutely, as long as Bennett and the other three members of his firm remain liable for it. Thev were discharged as insolvents in Massachusetts, hut that discharge is confined to that State, and does not exempt them from liability in other States or countries. They may all be insolvent now, and unable to pay, but this would not warrant the presumption that they will always remain so. In the contingencies of human affairs, any one of them may become possessed of property hereafter, and be compelled to pay this debt within the period during which, it will survive as an existing obligation against them.
It is suggested that if the defendants should pay this verdict, they would, having paid the plaintiffs’ debt, become subrogated to all the rights which the plaintiffs had to it, and would be entitled thereafter to maintain an action against the debtors for its recovery. Where a surety, to discharge his own responsibility, pays the debt, or where a party having an interest in land, for his own protection pays off an incumbrance, he takes the place of the former creditor, or as it is expressed in the law, is subrogated to all his rights in respect to the debt, and may enforce the payment of it (Hayes v. Ward, 4 Johns. C. R., 123; Sandford McLean, 3 Paige, 117 ; Jenkins v. Continental Ins. Co., 12 How., 66). But I do not deem it necessary to inquire whether the defendants would come within this rule or not, if they should pay this verdict, as the point is wholly immaterial to the question now before us. We are to decide what is the proper measure of damages, and that is a question which must be determined by the contract alone.
In the recent work of Mr. Mylne upon damages, he remarks that in the ease of contract, the measure of damages is much more strictly confined than in cases of tort, and that to hold a party who fails to perform a contract responsible for all that the other party ultimately hoped to get by it, or which it is possible he might have obtained, would be to make him an insurer without any premium for undertaking the risk, and upon the well-considered case of Hadley v. Baxendale (9 Excq. R., 341), he lays down the rulo which governs in all cases ofibreaeh [582]*582of contract, a rule which was approved and acted upon in this State, in Griffin v. Colder (16 N. Y. Rep., 489), and in Landsberger v. The Magnetic Telegraph Company (32 Barb. R., 530), that the damages are such as appears to 'have been contemplated by both parties when the contract was entered into. Mylne on Damages, 6, 15. In deciding the case of Hadley v. Baxendale, supra,Baron Alderson said: “ If the special circumstances under which a contract is made, are communicated and known to both parties, the damages resulting from the breach of it, which they would reasonably' contemplate, would be the amount of injury which would ordinarily follow from a breach of the contract under the special circumstances so known and communicated. But on the other hand, if these special circumstances were wholly unknown to the party making the contract, he, at most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances from such a breach of contract.”
In the present case, the circumstances known or- communicoted to the defendants when they made the contract, will not warrant the conclusion that they undertook to deliver the message with the understanding that they were tobe answerable for the amount of the debt if it should he lost through their failure to deliver the message immediately after its arrival in Providence, and unless such was the case, they cannot be said, within the meaning of this rule, to have contemplated a liability in damages to that extent.
They were under no obligation to enter into any such engagement. The plaintiffs, in view of the importance of time, and of the contingencies which might happen, had not been especially diligent. They knew of the presence of Bennett in this city before four o’clock in the afternoon, and yet nearly five hours were suffered to elapse before their attorney came to the defendants’ office to have the message sent. It was then in the evening, and after the office had been closed for the ordinary transaction of business, and if the plaintiffs failed to get their message delivered in time, it was owing to the late hour at which they brought it for transmission, and to a state of facts, very natural under-the .circumstances,existing at the of-nee in Providence, when the message was received.
[583]*583Brought to them, at such an hour, and liable to such con tingencies as upon this occasion did happen, the defendants were not bound to transmit and deliver it within a certain time that night, upon the understanding that they were to he answerable in the sum of twelve thousand dollars, if they failed to do so. They might certainly make such an agreement, hut where the compensation was so small, and the risk so great, it will not be inferred that they did, unless the circumstances clearly show that such was the understanding of both parties.
In a case before the Court of Queen’s Bench, in Canada, (Kingshorrn 7. The Montreal Telegraph Co. Decisions by English French and American Courts upon Telegraphic Communications, Utica, N. Y., 1863), the question of the liability of telegraphic companies,in damages, for negligence in the transmission and delivery of messages, came under consideration, and Justice McLeax said : “ It is, in my opinion, extremely doubtfui whether in any such ease, a party who avails himself of the facilities afforded in communicating by telegraph, can expect that a telegraph company shall be responsible for all damages, no matter what amount, which may arise in the hurry of transmitting a message, from any verbal inaccuracy of an operator, or from an omission in forwarding or delivering it when received. It ought not to be expected that so great facilities are to be afforded for so small a remuneration, and at a risk that might bring ruiii upon any company, if obliged to indemnify for every possible loss. Where parties desire to establish such a responsibility, it should he arranged with the telegraph company or its agents, and then every information should be given as to the importance of the message desired to be sent.”
The promise of the clerk that, the message should be delivered at once upon its arrival in Providence, cannot bo construed into an express or special agreement on Ills part, that the com-pony would be responsible for this debt of twelve thousand dollars, if through their failure to deliver the message immediately, ill o plaintiffs should fail in getting their attachment. If such a rosnonsibil: ty can arise only,as Justice McLean suggests, where it is established by an arrangement with the company or its agents, and where every information is given to show the importen,':; the ucs-sige, Yen there was wanting in this case, either tviy surest ?.r •.•mgement- tv that effect, or such a dis[584]*584closure of the circumstances to the clerk as to variant fliccm.clusion that he knew exactly what would be gained if the attachment was made, or lost, if it should not ho procured. Be was not advised of the important fact that the firm of J. II. Sturdy c% Go, were insolvent; that the house and lot of Bennett was unincumbered, and that if attached, it was of sufficient value to pay the debt, nor can he be presumed to have hwl a lawyer’s knowledge of the time that would bo requisite to make an attachment, and of the legal effect of it. These weix- nil very material circumstances which should at least have been known to him, before it can he said that he undertook that hi. principals should be responsible for the debt, if through a >U-!.w in delivering the message, the plaintiffs should fail to get the attachment.
The legal obligation of those who publicly engage in business of transmitting intelligence by means of viecr:-- 1 . graph is, in some of its aspects, to he likened to that uf emw. carriers, but there is a very material difference as to iwtent of their liability. In the case of the carrier, the pxk.. • or property he is to carry is placed in his custody. lie h ;: the time being exclusive control and dominion over it, ami necessarily knows if he fails to deliver it, that the value of r will be lost to the person who entrusted it to his carp. B .r those who, like the defendants, undertake to transmit inlAjgence, do not necessarily know what may be the effect if :k : message should fail to reach the person to whom it is ail-hv.- -■ L and should not bo hold answerable for all the possible e- - - quences, unless it can be assumed from the circiumíain:- i disclosed to them, that they knew exactly wliat was dep-iident upon it, and what would be the result in point of dan - ages, if they failed to deliver it.
If thus advised, they understand the extent and nature ■ the risk they assume, and may protect themselves against k ■ ■ mischances to which all human undertakings aro subj'ví, "; making a special agreement as to the damages in the failure, and at the same time an opportunity is afforded into require-.a compensation proportioned to the risk, a» w- b exerehe unusual vigilance: a very material c<.n-:- -r v/h.ere a heavy lii;biii:y may depend upon tile dkbn"/ - message within a limited point of time. If they aro tv ¡ ■ [585]*585swerable for all the consequences of mischance and failure, they should certainly be informed of all the material circumstances known to the party who avails himself of the facilities they afford, for they cannot be supposed to contemplate the happening of events, unless apprised, of the facts which render their occurrence probable or possible.
In Landsberger v. The Magnetic Telegraph Co. (32 Barb. R., 530), the plaintiffs agreed to purchase a quantity of pistols in New York, for a party in San Francisco. The pistols were to he shipped by the steamer of a particular date; the plaintiffs were to have a commission for making the purchase, and were to forfeit five hundred dollars if they tailed in performing the agreement. To enable them to execute it, they transmitted ten thousand dollars from San Francisco to New York, one of the plaintiffs expecting to reach New York about the time of the arrival of the money. He was unexpectedly detained, however, upon his route, and that the pistols might be purchased and shipped within the time agreed upon, he sent a telegraphic, message from Now Orleans to his firm in Now York; advising them of what was necessary to be done in the execution of the contract, and informing them where they would get the ten thousand dollars. The telegraph company, in transmitting the message, made a mistake in the name of the plaintiffs’ firm, in consequence of which, the message did not reach them until it was tau late to perform the contract, whereby they not only lost their commissions, but had to pay the five hundred dollars according to the stipulation in the agreement. It was held. that they could not recover either of these items as damages against the company, upon the ground, that as the telegraph company were not informed of the use that was to be made of the money, and of the consequences that would follow a delay in the receipt of it, they could not be presumed to contemplate any other damage from a delay in the delivery of the message except the loss of the interest upon the money, nine dollars and fifty-nine cents, which, with the sum paid fur transmitting the message, was held to be ail which the plaintiffs could recover. .
In the case now' before us the clerk may be presumed to have nnderstovu that if the message was not delivered immediately, the plaintiffs would lose the opportunity of getting the [586]*586_ attachment, but he cannot be supposed to have understood also, that that was the only means left to the plaintiffs.for tho recovery of their debt, and to have contemplated that if that failed through a delay in the delivery of the message, the plaintiffs would lose twelve thousand dollars, and that his cmployers would have to pay it. Indeed, I think it may he fairly assumed, that if lie had understood that the message was t<> In: delivered immediately under such an onerous responsibility. he would either have declined at that hour of the evening v; enter into any snch engagement, or if he had entered into if, that- he would have exercised extraordinary vigilance, ar.d would have satisfied himself by further communication that it had been duly delivered.
In Parker v. The Alta California Telegraph Company (l3 Cal. R., 422), the defendants, through an accident, delay--d fc fourteen liours, to send a message, by which the plaint::”agent was directed to attach a debtor’s property for a df,-!/. > f one thousand eight hundred dollars, in consequence of v.l.i- b delay, other persons obtained attachments, which ab-ofb..-l 1 whole of the property. The Supreme Court of California L/.I that tlie plaintiff might recover from the company tho amom : of the debt as damages ; and" they ordered a new trial mi tlvr. ground. All that I deem it necessary to say in respect t.) decision is, that the Court do not suppórt their opinion by any reference to adjudged cases, and that after giving it the ivspectful consideration to which the judgment of every superi-n tribunal is entitled, I am not satisfied of the correctness of the reasoning upon which it is founded.
•In my opinion, all that the plaintiffs could recover in tim present case, was what they paid for transmitting the mcs'C.g', and such expenses as were incidental thereto, and a new trial, in my judgment should be ordered.
Brady, J.
The telegram which the defendants undort- •• - -
to transmit and deliver^ was important, and on its face show - that its design was to secure the commencement oí í-.-j-’ proceedings against the plaintiffs’ debtors by. attachment., \ for-3 fhr fif.-ningt-Xi train entered the State of Bhode L: :* ■ The ao'-'imt of the debt also appeared in d.io telegram. !> : diti-x1. to ibis, the defendants’ agent “ was shown the hup-w: : ' [587]*587of it,” and he was told that it was to “ make an attachment on property,” and farther, that unless I he attachment was made before the Sionington train reached the Rhode Island State line, it would do no good at all. The plaintiffs’ attorney not only paid the price asked for the transmission and delivery, but after showing the importance of the telegram, he said to the operator or agent of the defendants : “ If there is any extra expense, or likely to be, about sending this dispatch right away I want you to tell me what it is, and I will pay it on the spot.” The defendants must he regarded, therefore, as having been advised of the importance of the telegram, and being advised of it, to have contemplated the consequences that might ensue from a failure to transmit and deliver it. The compensation asked for assuming the performance of the service demanded, was paid, and any additional sum was offered, which would be necessary, or likely to become so, to secure the transmission and delivery desired. The defendants cannot avail themselves, therefore, of the principle, that their compensation was not commensúrate with the risk incurred, assuming the risk to have been hazardous. It was not so, however. The line was working well—the communication was intact—the operators employed at either end of the route capable, the one of translating and the other of receiving the telegram, and it was transmitted without delay. The mischief done to the plaintiffs was occasioned not by the failure to transmit, hut by gross negligence in the delivery of the message at Providence. The case is entirely free from any question of transmission. A few moments’ attention would have averted all the loss the plaintiffs have sustained, and the litigation which has sprung up between the parties hereto. If the defendants are held responsible to the extent of the verdict herein, it may be burdensome, or it may be a severe punishment for what seems to be a slight- misfeasance when measured by the compensation given. But it must not be forgotten that no fraud was practiced upon the defendants. They were not asked to assume a responsibility not disclosed. The telegram was not only subject to their inspection, but explained in all matters relating to its object and importance. If the administration of justice requires that the judgment pronounced in this case should be maintained, it must be. "We have nothing to do with effects. Was the judgment right f [588]*588Was tlio measure of damages erroneous or not ? The proof establishes that the attachment, if served, would have been a lien upon the house and lot of Bennett, one of the debtors of the plaintiffs; that it could have been served if the defendants had delivered the telegram diligently after its receipt at Providence ; that the house and lot which would have been covered and secured by the lien, was subsequently sold for about the amount of the plaintiff's claim ; that the debtor who owned it, and his associates, were insolvent, and went into bankruptcy, and that the debt claimed was due to the plaintiffs. The jury found, in accordance with this proof, and upon these facts the defendants are to be charged, if at all. They could not gainsay these facts, or any of them, and they attempt to shield themselves from the obligation incurred, by the ■ doctrine that the damages claimed are conjectural, and not such as contemplated by the contract when made. Is this true ? Let us see what was contemplated by the contract. The telegram and its explanation contemplated an attachment on a house and lot to secure twelve thousand dollars, before the Stonington train entered the State of Rhode Island, otherwise it would do no good, and that unless the telegram could be delivered immediately, the attachment could not be secured. Ro other suggestion can dawn upon the mind, in view of this information, than that delay might wholly destroy the efficacy of the contemplated process of attachment. “ Ascertain in morning if mortgage on the house on record ; if so withdraw attachment,” a part of the telegram itself, in the absence of explanation, advising the reader that the house and lot referred to would be made available if the process was served, and no mortgage was recorded against the property. In other words, the contract amounts in substance to this—If you deliver that telegram right away I shall secure twelve thousand dollars in all probability ; if you do not, I will not send it, because it will do no good. The defendants answer and say, It will be sent at once. The plaintiffs might fail in accomplishing the purpose of the telegram, it is true. Mr. Payne might be absent, leaving no person to represent him, hut that would be the plaintiffs’ misfortune, and not the defendants’ fault. The hitter have not shown that the attachment could not have been made—’the jury have found that it could. "YThat is there conjectural up[589]*589on these facts in reference to the damages recovered ?' This is-not a case of profits. There is no doubt about the value of the house- and lot. The contingency related to the service of the attachment, not to the damages. If that service could be made, then the result of it cannot he doubted. It is established by the evidence and verdict of the jury. That the debtors have not been absolutely and forever discharged from their indebtedness to the plaintiffs, and that at some timej and in some place, in which the discharge obtained may not avail them, they may be able and be compelled to pay, is too conjectural to relieve the defendants of their liability. If the attachment had been served, the plaintiffs would not have been affected either by the bankruptcy or insolvency of their debtors, inasmuch as the property upon which a lien was to be secured was sufficient to pay the debt. There is no evidence to show that a judgment might not have been obtained in that proceeding —none that it is either complicated or difficult. It seems to he a very simple one, and that it could have been successfully prepared and set in motion is established by the jury, and that it would have been successful ultimately, must be inferred from, the facts that no defence was shown to the claim, and that judgment was obtained for its amount. The damages shown are, for these reasons, such as may fairly he supposed to have entered into the contemplation of the parties-when the contract was made, inasmuch as the defendants were advised of all that was necessary to make the contract appreciable. The importance of the telegram was shown by the plaintiffs’ attorney, as already stated, and this could not have been done without explaining the circumstances surrounding the plaintiffs’ debtors, the necessity of priority in issuing the attachment, and that it should be served before the Stoningtou train reached the State line of Eh ode Island. In the case of Parks v. Alta California Telegraph Co. (13 Cal., 422), the defendants were held liable for the amount of the plaintiff’s debt, which he had lost in consequence of the negligence of the defendants in sending a dispatch directing an attachment to he served. In that case it appeared that owing to the delay in its delivery, other attachments had been served, and the assets of the defendants exhausted in their application to them, to the exclusion of the [590]*590danis were insolvent. The court in that case says : “ It seems to us that the loss of the debt would be the natural and proximate damages resulting from the breach of the contract.” In Allen v. Suydam (20 Wend., 321), it was held that where the debt waslost through the negligence of the agent, the measure of ñ&m&gQs prima facie is the amount of the bill, the defendant being at liberty to show circumstances, it any exist, tending to mitigate the damages, or reduce the recovery to a nominal amount. They have not shown any circumstances or mitigation. There is nothing in the ease from which the conclusion may be justly drawn, that any part of the plaintiffs’ debt can be collected from their debtors. The insolvency of the latter was sufficient to put the defendants to their proof, and in the absence of proof to the contrary, is conclusive evidence of the loss of the debt, taken in connection with the other facts and circumstances of this case (Parks v. Alta California Telegraph Company, supra).
For these reasons I find it impossible to resist the conclusion, upon a deliberate consideration of the facts of this case, that the loss of the plaintiffs’ debt was the natural and proximate damages resulting from the failure of the defendants to deliver the telegram as agreed upon. It has not been thought necessary to consider the question of subrogation further than to state that the tender of the promissory notes of the plaintiffs debtors to the defendants, have placed the latter in a position to reap all the advantages of the debt.
I think the judgment should he affirmed.
Judge Oardozo concurred with Judge Beady.
Judgment affirmed.