cient which avers that the gift sought to be enforced is a parol one; that it is obnoxious to the provisions of the statute of frauds, and that the gift is of no avail and is void as against the defendant: Schoonmaker v. Plummer, 139 Ill. 612. But a mere reference to the statute is wholly insufficient: Wolfskill v. Douglas (Cal., Feb. 7, 1900), 59 Pac. Rep. 987. A pleading should expressly aver that the contract is not in writing: Bean v. Valle, 2 Mo. 126. It is not sufficient to allege that an account based on an agreement is barred by the statute; the facts relied upon as a defense must be set out: Dinkel v. Gundelfinger, 35 Mo. 172. Where the defense to a contract is that it was not in writing, the answer must set up such defense as a fact, and put it distinctly in issue. A statement that the contract is void in law and that the defendant is not bound to perform the same is insufficient: Vaupell v. Woodward, 2 Sand. Ch. 143. A plea that the note sued on "was given in consideration of a sale of land not evidenced by writing," is not a plea setting up the statute of frauds, but is merely a plea of want or failure of consideration: Edelin v. Clarkson, 3 B. Mon. 31, 38 Am. Dec. 177. An admission of the contract, coupled with a denial that the defendant was equitably or morally bound to carry out the agreement, is not a sufficient plea of the statute: Battell v. Matot, 58 Vt. 271.

HENDRICKS v. WESTERN UNION TELEGRAPH CO. [126 North Carolina, 304.]

APPEAL INCOMPETENT QUESTION.—IT IS HARMLESS ERROR to permit an incompetent question to be asked a witness, where the witness answers that he did not know, since the answer is more favorable to the opposite party than if the question had been excluded, because it prevents any unfavorable inference.

TELEGRAPH COMPANIES LIABILITY FOR NONDELIVERY.-A telegraph company, which receives a message for delivery and fails to deliver it with reasonable diligence, becomes prima facie liable, and the burden rests upon it of alleging and proving such facts as it relies upon to excuse its failure.

TELEGRAPH COMPANIES-DELAY IN DELIVERY-LIABILITY.-The failure of a telegraph company to deliver a message within a reasonable time is equivalent to nondelivery, so far as the principle of liability is concerned, although the length of the delay may in certain cases affect the quantum of damages.

TELEGRAPH COMPANIES-RULES-NOTICE TO SENDER OF MESSAGE.-A rule of a telegraph company relating to the delivery of messages, made without notice to those who are to be affected by it, and which is not observed by the company itself, affords no protection against liability for failure to deliver.

TELEGRAPH

COMPANIES-NOTIFYING SENDER OF NONDELIVERY OF MESSAGE-NEGLIGENCE.-It is the duty of

a telegraph company, in all cases where it is practicable to do so to promptly inform the sender of a message that it cannot be delivered. A failure to do so is evidence of negligence, though it may not be negligence per se.

JURY TRIAL.--A jury has, in all cases, the constitutional right to pass upon the weight and credibility of the testimony.

TRIAL QUESTIONS OF LAW AND FACT.-What is due diligence or reasonable care is generally, if not always, a mixed question of law and fact.

Action to recover damages for the negligent failure of the defendant to deliver two telegrams sent to the plaintiff. The messages were sent to Gaffney, South Carolina, in care of the Gaffney Cotton Mills, where the plaintiff was employed. Plaintiff lived at Gaffney, South Carolina. Plaintiff was well known at the mills and other places of business in the town. The first message was given to a twelve year old boy to deliver, who> went to the Gaffney mill to inquire for the plaintiff, and was told to go through the mill and look for him. He only went through a part of it, and not the part where the plaintiff worked. He made inquiries of four or five persons at the mill, and made other inquiries in a few places in town, and, failing to find the plaintiff, he returned to the telegraph office. No service message was sent from the receiving office at Gaffney to the sending office at Lincolnton saying that the first message could not be delivered. The defendant objected to the following question asked of one of the witnesses: "Could you have found out from the plaintiff's family that lived in Gaffney, if you had been informed that the telegram had not been delivered?" The defendant excepted to the court's refusal to give the following instructions: 1. That if the defendant company made due inquiry for the addressee at Gaffney Cotton Mills, in whose care the message was sent, and failed to find him there, they used due diligence, and, unless negligent in other respects, they were not negligent in delivering the message; 2. The defendant was not negligent in failing to send a message asking for a better address, unless they believe that by sending such message the company could have obtained a better address. The defendant excepted to the court's giving the following instructions on behalf of the plaintiff: 1. The fact that the messages were addressed in care of the Gaffney Cotton Mills, and that the defendant inquired there for the plaintiff, and was told he was not there, did not excuse it from making diligent inquiry in Gaffney for his whereabouts; 2. If the plaintiff at this time lived in Gaffney, it was the defendant's duty to make inquiry

at his residence, and a failure to do so is negligence; 3. It was the defendant's duty to make inquiry at the postoffice for the plaintiff, if he had been receiving mail at the postoffice for some time; 4. It was the duty of the defendant's operator at Gaffney, if the message could not be delivered, to notify the operator at Lincolnton, so that the latter could get a better address or additional information of the plaintiff's whereabouts, unless the jury find that by so notifying the operator at Lincolnton, the defendant could not have obtained a better address.

Jones & Tillett, for the appellant.

Burwell, Walker & Cansler, for the appellee.

309 DOUGLAS, J. The first exception cannot be sustained. The question was competent, but in any event was harmless, as the witness answered that he did not know. Where a party is seeking to prove a fact, and the witness answers that he does not know, the answer is in fact more favorable to the opposite party than if the question had been excluded, because it prevents any unfavorable inference. The point so clearly presented and elaborately discussed, whether the defendant company was bound to make inquiries beyond the local limits of free delivery, does not appear to arise in this case, in the view we take of it. It is well settled that where a telegraph company receives a message for delivery and fails to deliver it with reasonable diligence, it becomes prima facie liable, and that the burden rests upon it of alleging and proving such facts as it relies upon to excuse its failure: Sherrill v. Western Union Tel. Co., 116 N. C. 655; 117 N. C. 352; Gray on Communication by Telegraph, sec. 26; Thompson on Electricity, sec. 274, and cases therein cited. The failure to deliver within reasonable time is equivalent to nondelivery, as far as the principle of liability is concerned, although the length of the delay may affect in certain cases the actual quantum of damages. The object of using the telegraph is its capacity for almost instantaneous transmission of intelligence, and if this purpose is defeated there is no consideration for the increased cost of its use. every respect except that of time, the postal service, with its small cost and greater secrecy, would be preferable.

310

In

In the case at bar, it is admitted that the telegram was not promptly delivered, but the defendant insists that its nondelivery was not due to any negligence on its part, but solely to its failure to find the addressee, after every reasonable

effort to do so. It does not set up any contractual limitations of liability. In fact it appears that the plaintiff addressee lived within the free delivery limits of Gaffney. The usual printed terms of the company are not set out in the record, but they are on the back of all blanks of the defendant company, and can be found on page 436 of Croswell's Law of Electricity. The only difference appears to be that the author has omitted the words "any message" in line 27 of the form after the word "forward." The clause under consideration is as follows: "Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a greater distance, a special charge will be made to cover the cost of such delivery." By its very terms this provision does not apply to the office from which the message is sent. It may be further noted that the company does not say that the message will not be delivered beyond such limits, but that "a special charge will be made to 311 cover the cost of such delivery," which would seem to clearly imply that it would be delivered. No fixed limit of distance nor definite sum is specified, and it is difficult to see how the sender can be presumed to know either in the absence of information from the company.

Many of these printed terms have been held void as contrary to public policy, but even where valid they must be reasonably construed: Brown v. Postal Tel. Co., 111 N. C. 187, 32 Am. St. Rep. 793; Sherrill v. Western Union Tel. Co., 116 N. C. 655; 117 N. C. 352; Dowdy v. Western Union Tel. Co., 124 N. C. 522; Landie v. Western Union Tel. Co., 124 N. C. 528.

The following comment by the court in Western Union Tel. Co. v. Robinson, 97 Tenn. 638, is peculiarly appropriate: "A rule merely made without notice to those who are to be affected by it, and without exaction of conformity to it, and which is not in fact observed by the company itself, cannot, as a protection against liability, be laid away in the secret consciousness of the agents of the company, unknown and unobserved, until the occasion arises to apply it, on account of liability incurred by failure to deliver."

In the case at bar this limitation of free delivery limits is invoked only to excuse the agent at the terminal office from not informing the agent at the office of transmittal that the message has not been or could not be delivered. This becomes purely a question of reasonable diligence, and we think is an

swered by the fact that there was a telephone from the depot, where the office of the defendant appears to be, to the home of the sender. It would seem that ordinary care would require the agent at Lincolnton to step to the telephone and notify the sender that a message of such vital interest had not been delivered. This he doubtless would have done if he had been informed of that fact by the agent at Gaffney. We think that it is the duty of the company in all cases where it is practicable to do so to promptly inform the sender of a 312 amessage that it cannot be delivered. While its failure to do so may not be negligence per se, it is clearly evidence of negli gence. In many instances, by such a course, the damage could be greatly lessened, if not entirely avoided. A better address might be given, mutual friends might be communicated with, or even a letter might reach the addressee. In any event, the sender might be relieved from great anxiety, and would know what to expect. Moreover, it would tend to show diligence on the part of the company.

The question as to what would have been the legal effect if the message had been left with the company in whose care it was addressed does not arise. The messenger testifies that he went into the office of the Gaffney Cotton Mills and asked Wardlaw if Hendricks was there, and was told to go and look. He did not show the message to Wardlaw or anyone else at the mill, nor did he inform them that it was directed in their care. In spite of a hypothetical answer of the witness Wardlaw, we cannot suppose that if he had been informed of the nature of the telegram addressed to one of his employés in his care, he would not have taken some little trouble to have aided in its delivery. The messenger merely asked the postmaster if he knew the plaintiff, but did not ask him if the plaintiff received his mail at that office. These facts, so far from exonerating the defendant, tend to prove its negligence, but as there was some conflicting testimony, as well as other material facts, the matter was properly submitted to the jury, who in all cases have the constitutional right to pass upon the weight and credibility of the testimony. What is due dili gence or reasonable care, the phrases in this case being practically synonymous, are nearly always, if not always, mixed questions of law and fact. Difficult of accurate definition and still more so of determination, they depend upon the relative facts of each case and come peculiarly within the 313