HARALSON, J. —
1. The demurrers to defendant’s second and third pleas were properly sustained. The second professes to he a plea in bar, but really, it is one in mitigation of damages. It does not go to all, but to a part of the damages claimed, and should have been so pleaded. If plaintiff was, under any circumstances, under any legal obligation to defendant to attempt to partially recoup his loss in consequence of defendant’s failure to comply with its contract in sending the message, it is not averred in said plea that plaintiff knew or was informed that he could thus protect himself. But, plaintiff was not bound to anticipate that defendant would not comply with its contract and he owed defendant no such duty as that averred in the 2d plea, arising out of such supposed obligation. Nor did plaintiff owe the defendant the duty, as averred in the third plea, to exercise diligence to ascertain by inquiry from defendant or otherwise, that the Birmingham Exchange Company, the sendee of the message, had received his telegram corrctly and had purchased the cotton as instructed by him. This he might have done for his own satisfaction, but not as a duty he owed defendant. — W. U. Tel. Co. v. Crawford, 110 Ala. 460, 467; Daughtery v. A. U. Tel. Co., 89 Ala. 191; W. U. T. Co. v. Stephens, 16 S. W. Rep. 1095; 25 Am. & Eng. Encyc. Law, 809.
2. It may be stated generally as a correct rule, that a telegraph company, in accepting a message for transmission, is under obligation by its contract with the sender of the message, to transmit it correctly and without delay, and for a failure to do so, is liable to the sender for the damages, of which its negligence was the proximate cause. It is also well settled, that such a company is not, like a common carrier, an insurer against all accidents.- — 25 Am. & Eng. .Encyc. of Law, 778, and authorities cited; Thompson on Law of Electricity, § 139.
[435]*435In respect to the contract for the repetition of messages, and the release of the company from damages, if mistakes occur in the transmission, unless the sender requires the message to be repeated, such as is set up in the 4th plea, courts have taken different views, but the great weight of authority, including our own court, is opposed to the validity of such a stipulation. The rule in respect to such, is well settled to be, that “On principle it would seem that the stipulation is invalid, in that it opposed the recognized principle that all individuals or corporations engaged in a public business cannot be allowed to contract against liability for the consequences of its own negligence, or willful wrong-doing. And since it appears that the stipulation is not, as a mat-" ter of fact, provided with a view of securing correctness in the transmission of messages, but rather to protect the company from liability, it cannot be regarded as a reasonable regulation which it is in the company’s power to provide. Regarded as a contract, the stipulation is void as having been induced by a species of moral duress. The weight of authority is, therefore, opposed to upholding such a stipulation, and declines to sustain or enforce it.’’ — 25 Am. & Eng. Ency. Law, 791, 792, where authorities on the subject are collated; Thompson on Electricity, 241; A. U. Tel. Co. v. Daughtery, 89 Ala. 191. A prima facie case is made out by the plaintiff against the company for failing to correctly transmit a message, by shoAving that the message delivered was not a copy of the one sent, when defendant must exonerate itself by showing that the breach was not due to negligence on its part. Pearsall v. W. U. Tel. Co., 124 N. Y. 256; s. c. 21 Am. St. Rep. 662; W. U. Tel. Co. v. Dubois, 128 Ill. 248; Gray on Communications by Tel., § § 26, 53, 77; Sherman & Red-field on Neg., § 542; 3 Suth. on Damages, § 957; Thompson on Neg., 837.
The demurrer to the 4th plea was properly sustained.
3. Issue was joined in the case on the plea of the general issue, and on the 5th and 6th pleas; the 5th setting up that the contract sued on Avas founded on a gambling consideration, and the 6th, that the contract sought to be made by the plaintiff with the Birmingham Exchange [436]*436Company, the sendee of the message, was a contract founded on a gambling consideration, and was illegal and void. What the evidence introduced on the trial was, we are not informed by bill of exceptions. In the motion for a new trial, we are informed, that the cause was tried before a jury by the plaintiff on evidence adduced to prove his case, in the absence of defendant’s counsel. Judgment ivas rendered for plaintiff for the sum of $122.65 and costs.
The defendant afterwards moved the court for a new trial, which was overruled. The cause is here on bill of exceptions reserved on the trial of that motion. It is based on the ground that the attorneys for the defendant were absent by alleged unavoidable delay in consequence of being engaged in the trial of two causes in Birmingham, one in the Federal and the other in the city court in that city, and on the ground that plaintiff ought not to be allowed to recover, on account of the gaming transaction in which he was engaged in sending his messages.
In the first place, we may dispose of the latter question by stating, that the messages sent by plaintiff to his correspondent in Birmingham, over defendant’s line, do not conclusively reveal an intention on the part of plaintiff to deal in what are termed “futures.” Such contracts, as the authorities generally concur in holding, are valid, though the vendor neither has the goods in hand, nor has contracted for the purchase of them, and has no expectation of acquiring them otherwise than by their purchase at some date before the day of delivery. But if it is apparent that no purchase and delivery were intended, but that the transaction should be closed up on the basis of the market value of the goods at the date of delivery, the losing party paying the other the difference, it is a gambling transaction, it is contrary to public-policy and void at common law, in the absence of a statute even denouncing it as such. — Hawley v. Bibb, 69 Ala. 52; Lee v. Boyd, 86 Ala. 283. The demurrers to the 5th and 6th pleas were withdrawn, and issue taken on them. It may be, in a suit of this character, they were subject to demurrer; but this question is not before us, and we, therefore, do not decide it.
[437]*4374. Tlie law firm employed by defendant to defend its suit, consisted of three members, all residing in Birmingham. The case was originally set for trial on October 26, 1897, but by an agreement of counsel on both sides, and with the consent of'the court, it was reset for November 3, following. The attorneys for defendant did not appear at Decatur on the last day named. One of them telegraphed on the 2d, to the clerk of the court in Decatur: “We are engaged in United -States Court. Pretty sure can be in Decatur Friday or Saturdayrequesting the clerk to show the message to Mr. Brown, attorney for plaintiff, and have case passed to Friday or Saturday. The clerk replied same day, that Brown was not there and j udge refused to make order in his absence. Brown lived in Hartselle, Ala. On the 3d, the same attorney telegraphed to Brown in Decatur: “If case reached please pass until tomorrow. Our firm engaged in city and United States courts. If I cannot come will' send some lawyer in my place. If case will not be reached tomorrow, wire me today.” To this Brown replied: “Telegram received after case was disposed of this forenoon.
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HARALSON, J. —
1. The demurrers to defendant’s second and third pleas were properly sustained. The second professes to he a plea in bar, but really, it is one in mitigation of damages. It does not go to all, but to a part of the damages claimed, and should have been so pleaded. If plaintiff was, under any circumstances, under any legal obligation to defendant to attempt to partially recoup his loss in consequence of defendant’s failure to comply with its contract in sending the message, it is not averred in said plea that plaintiff knew or was informed that he could thus protect himself. But, plaintiff was not bound to anticipate that defendant would not comply with its contract and he owed defendant no such duty as that averred in the 2d plea, arising out of such supposed obligation. Nor did plaintiff owe the defendant the duty, as averred in the third plea, to exercise diligence to ascertain by inquiry from defendant or otherwise, that the Birmingham Exchange Company, the sendee of the message, had received his telegram corrctly and had purchased the cotton as instructed by him. This he might have done for his own satisfaction, but not as a duty he owed defendant. — W. U. Tel. Co. v. Crawford, 110 Ala. 460, 467; Daughtery v. A. U. Tel. Co., 89 Ala. 191; W. U. T. Co. v. Stephens, 16 S. W. Rep. 1095; 25 Am. & Eng. Encyc. Law, 809.
2. It may be stated generally as a correct rule, that a telegraph company, in accepting a message for transmission, is under obligation by its contract with the sender of the message, to transmit it correctly and without delay, and for a failure to do so, is liable to the sender for the damages, of which its negligence was the proximate cause. It is also well settled, that such a company is not, like a common carrier, an insurer against all accidents.- — 25 Am. & Eng. .Encyc. of Law, 778, and authorities cited; Thompson on Law of Electricity, § 139.
[435]*435In respect to the contract for the repetition of messages, and the release of the company from damages, if mistakes occur in the transmission, unless the sender requires the message to be repeated, such as is set up in the 4th plea, courts have taken different views, but the great weight of authority, including our own court, is opposed to the validity of such a stipulation. The rule in respect to such, is well settled to be, that “On principle it would seem that the stipulation is invalid, in that it opposed the recognized principle that all individuals or corporations engaged in a public business cannot be allowed to contract against liability for the consequences of its own negligence, or willful wrong-doing. And since it appears that the stipulation is not, as a mat-" ter of fact, provided with a view of securing correctness in the transmission of messages, but rather to protect the company from liability, it cannot be regarded as a reasonable regulation which it is in the company’s power to provide. Regarded as a contract, the stipulation is void as having been induced by a species of moral duress. The weight of authority is, therefore, opposed to upholding such a stipulation, and declines to sustain or enforce it.’’ — 25 Am. & Eng. Ency. Law, 791, 792, where authorities on the subject are collated; Thompson on Electricity, 241; A. U. Tel. Co. v. Daughtery, 89 Ala. 191. A prima facie case is made out by the plaintiff against the company for failing to correctly transmit a message, by shoAving that the message delivered was not a copy of the one sent, when defendant must exonerate itself by showing that the breach was not due to negligence on its part. Pearsall v. W. U. Tel. Co., 124 N. Y. 256; s. c. 21 Am. St. Rep. 662; W. U. Tel. Co. v. Dubois, 128 Ill. 248; Gray on Communications by Tel., § § 26, 53, 77; Sherman & Red-field on Neg., § 542; 3 Suth. on Damages, § 957; Thompson on Neg., 837.
The demurrer to the 4th plea was properly sustained.
3. Issue was joined in the case on the plea of the general issue, and on the 5th and 6th pleas; the 5th setting up that the contract sued on Avas founded on a gambling consideration, and the 6th, that the contract sought to be made by the plaintiff with the Birmingham Exchange [436]*436Company, the sendee of the message, was a contract founded on a gambling consideration, and was illegal and void. What the evidence introduced on the trial was, we are not informed by bill of exceptions. In the motion for a new trial, we are informed, that the cause was tried before a jury by the plaintiff on evidence adduced to prove his case, in the absence of defendant’s counsel. Judgment ivas rendered for plaintiff for the sum of $122.65 and costs.
The defendant afterwards moved the court for a new trial, which was overruled. The cause is here on bill of exceptions reserved on the trial of that motion. It is based on the ground that the attorneys for the defendant were absent by alleged unavoidable delay in consequence of being engaged in the trial of two causes in Birmingham, one in the Federal and the other in the city court in that city, and on the ground that plaintiff ought not to be allowed to recover, on account of the gaming transaction in which he was engaged in sending his messages.
In the first place, we may dispose of the latter question by stating, that the messages sent by plaintiff to his correspondent in Birmingham, over defendant’s line, do not conclusively reveal an intention on the part of plaintiff to deal in what are termed “futures.” Such contracts, as the authorities generally concur in holding, are valid, though the vendor neither has the goods in hand, nor has contracted for the purchase of them, and has no expectation of acquiring them otherwise than by their purchase at some date before the day of delivery. But if it is apparent that no purchase and delivery were intended, but that the transaction should be closed up on the basis of the market value of the goods at the date of delivery, the losing party paying the other the difference, it is a gambling transaction, it is contrary to public-policy and void at common law, in the absence of a statute even denouncing it as such. — Hawley v. Bibb, 69 Ala. 52; Lee v. Boyd, 86 Ala. 283. The demurrers to the 5th and 6th pleas were withdrawn, and issue taken on them. It may be, in a suit of this character, they were subject to demurrer; but this question is not before us, and we, therefore, do not decide it.
[437]*4374. Tlie law firm employed by defendant to defend its suit, consisted of three members, all residing in Birmingham. The case was originally set for trial on October 26, 1897, but by an agreement of counsel on both sides, and with the consent of'the court, it was reset for November 3, following. The attorneys for defendant did not appear at Decatur on the last day named. One of them telegraphed on the 2d, to the clerk of the court in Decatur: “We are engaged in United -States Court. Pretty sure can be in Decatur Friday or Saturdayrequesting the clerk to show the message to Mr. Brown, attorney for plaintiff, and have case passed to Friday or Saturday. The clerk replied same day, that Brown was not there and j udge refused to make order in his absence. Brown lived in Hartselle, Ala. On the 3d, the same attorney telegraphed to Brown in Decatur: “If case reached please pass until tomorrow. Our firm engaged in city and United States courts. If I cannot come will' send some lawyer in my place. If case will not be reached tomorrow, wire me today.” To this Brown replied: “Telegram received after case was disposed of this forenoon. Judgment against defendant for about $120.” Defendant’s attorney then telegraphed to Brown or Judge Speake, expressing surprise at ihe taking of the judgment after seeing his telegram, and stating that he Avould be up that night with his Avitnesses, ready to try the case, and requesting Brown to keep his Avitnesses there or get them back, if they had gone. To this BroAvn replied: “Witnesses are gone. Heard nothing of your telegram until my client and Avitnesses were here ready and demanding trial. Big damage suit against Morgan county on trial, which will last several days.”
It is not shown that defendant’s counsel attempted to have either of their cases in the city or Federal Court laid over, in order that one of them might go to the Decatur court to try this cause, which had been previously set by their consent on the 3d of November. Reasons are ' stated why one of the counsel engaged in the city court case was needed to try that cause, and another to try the cause in the Federal court, but no facts are shown why it was necessary that the third one should remain in Bir[438]*438mingliam on account of either of said causes, further than the expression of a conclusion that it was necessary for him to do so. It is not shown why defendant’s counsel, when apprehensive of a conflict in the trials of their causes in Birmingham and at Decatur, did not communicate with plaintiff and his attorney, Brown, both of whom lived at Hartselle, before the latter left home to come to Decatur to try said cause, and attempt to make arrangements for the postponement of this cause. It appears they presumed it would be done as a matter of courtesy, and they delayed timely effort to effect such an arrangement. The attorney of defendant, who did the correspondence by wire, in one of his messages to plaintiff’s attorney, stated that if he could not come at a certain time, if the case was laid over till then, he would send another attorney to represent him. He does not show, that he might not have done this and had the case tried when set. It also appears, there were other capable lawyers living in Decatur, avIio had no connection Avitli this case, who, for aught appearing, could have represented defendant. It Avas the duty of defendant or his attorneys to have made some arrangement for the trial of the cause, by the appearance of one of them, or by a suitable representative for the purpose, and not to have depended on a courtesy to be shoAvn them by opposing counsel, especially when it would have been at considerable expense to his client to do so. We will not attempt to deal with the question of courtesy between opposing counsel. The judge avIio tried this cause, sitting as a fair arbiter in the premises, with all the facts before him, decided that it was not his duty to grant a neAV trial, and we are not unable to hold that lie erred in so doing. This conclusion is fully justified by previous decisions of this court. — Brock v. S. & N. A. R. R. Co., 65 Ala. 79; Broda v. Greenwald, 66 Ala. 538; McLeod v. Shelly Mfg. & Imp. Co., 108 Ala. 81.
Affirmed.