Bleckley, Chief Justice.
1. The default chargeable to the company was not a mere error in transmission, but a total failure to transmit and deliver the message which was intrusted to it. The agent, whether actuated by a motive of kindness or any other, had no right to substitute a free message of his own for that which he had received for transmission and which was paid for in advance. True it is that this substitution was capable of ratification, but no ratification could result from an act done without knowledge of the thing to be ratified. Though the evidence rendered it certain that the money prepaid as compensation for sending the message over the wires and delivering it at destination was refunded shortly after the substitution of the one message for the other took place, this without proof that the money was received and accepted with knowledge of the substitution would not suffice to establish ratification. And the evidence wholly failed to show such knowledge.
2. If the company incurred the statutory penalty, there was no remission of the penalty by receiving back the money which had been paid to the company for service which it never performed. It could not cancel the penalty by merely refunding this money. Had there been [497]*497some express agreement amounting to an accord, and the refunded money had been received in satisfaction, the penalty might have been released or discharged. But no such agreement appears. Merely refunding the money by the one party and receiving it back by the other did not constitute any bar to the action. Western Union Telegraph Company v. Taylor, 84 Ga. 408, citing W. U. Tel. Co. v. Buchanan, 35 Ind. 430.
Judgment affirmed.
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