of authority does not recognize it. If a private corporation is to be regarded, when acting under the authority of the State, as its agent, it would seem that the immunity from liability for damages which is drawn solely from the right of the principal would be subject to all the vicissitudes to which the principal's right of immunity is subject, and that each agent could not continue to retain an exemption in respect to future acts, beyond that of its principal from whom by reflection the immunity arose. The immunity which one acting under legislative authority enjoys is the sovereigns immunity; it is not an inherent right of the corporation nor does it arise out of contract. See Tinsman v. R. R. supra; Transportation Co. v. Chicago, 99 U. S. 635; Sedg. Dam. 111. It may be doubted therefore whether the amendment in quesiion is not operative upon charters previously granted to private corporations, in respect to future acts.

Statutes and municipal charters in some of the States provide for compensation for damages caused by changing the grade of a street. Such provisions are remedial and are to be liberally construed. Mayer v. Nichol. 59 Tenn. 338; a statute allowing damages when property is improved does not limit or require the damage to be to the improvement. Dalzell v.Davenport 12 Iowa 437; Stickford v. St. Louis, 7 Mo. App. 217; damages are not due until injurious act completed. Page v. Boston, 106 Mass. 84; but so far as injury actually done he may recover though incomplete. Schunmaker v. St. Louis, 2 Mo. App. 297; as to what damage is included see Hartshorn v. Worchester, 113 Mass. 111; Bemis v. Springfield, 122 Mass. 110.

GIDEON D. BANTZ.

MUNICIPAL CORPORATIONS CASTING SURFACE WATER UPON PRIVATE LAND.

HETH V. FOND DU LAC.*

MUNICIPAL CORPORATION. [Surface Water-Injunction.]-Not Enjoined from Increasing Flow of Surface Water.-The resident owner of a lot fronting upon a public street in a city cannot be permitted to restrain such city from constructing drains along the side or culverts across such street, or other streets in the vicinity, or from grading or otherwise improving the same, merely because such acts, when completed, would greatly increase the flow of surface water upon his land.

Appeal from Circuit Court, Fond du Lac county. This action was brought to restrain the city from opening a culvert across Everett street, on the south line of Second street, and from attempting to carry or drain the waters from the east side of Everett street down along the south line of Second street in front of the property of McDonald. The issues were joined, and the cause tried by the court, which made and filed the following findings: That the allegations of the bill of complaint are true: second, that the proposed ditch or culvert, which the defendant concedes and admits it is about to dig and open, will cast upon the lands

*S. C. 23 N. W. Repr. 495.

of the plaintiffs large quantities of surface water, which were naturally wont to flow in an opposite direction, and which water so cast, by reason of the omission and neglect to provide means for their escape and discharge by the defendant, will greatly incommode and damage the said plaintiffs whenever a flood or heavy rains occur, by standing upon their door-yards, filling their cellars, or injuring flowers, trees and shrubbery, and by filling and flowing upon the streets to the detriment of the public, and by standing until it is removed by process of evaporation, tending to the creation of malaria from noxious vapors, and injuring the public health; that this ditch so proposed to be opened, without any means provided for the escape of water thus proposed to be brought down in front of and upon the lots and door-yards of the plaintiffs, will constitute and create at every freshet a public nuisance,from which special damage will inure to the plaintiffs, so often as there shall be heavy rains and freshets; and as a conclusion of law, applicable to the facts as found, that the plaintiffs are entitled to the relief prayed, and to a judgment for taxable costs and expenses. Ordered accordingly. From the judgment entered thereon the defendants bring this appeal.

E. S. Bragg, for respondent; P. H. Martin, for appellant.

CASSODAY, J., delivered the opinion of the court: Everett street runs north and south. The first street west of it, and parallel with it, is Harney street. Crossing these streets at right angles, or nearly so, are First, Second, Third and Fourth streets, numbered consecutively from the north towards the south. The plaintiffs, respectively, own lots and reside upon the south side of Second street and between Everett and Harney, McDonald's lot being the corner lot next to Harney. It appears from the evidence that, from points at a considerable distance south and southeast of the premises in question, the surface of the ground very gradually descends towards the premises of the plaintiffs, and thence northerly to the lake. From a point on the north side of Second street about 200 feet east of Everett street, there is a ravine or depression in the surface of the ground leading northward to the lake, where most of the surface water east of Everett street was accustomed to flow. From a point in Fourth street about 200 feet east of Harney, there was a ravine or depression in the surface of the ground leading northward over the northeast corner of McDonald's lot, across Second street through a culvert, and thence to the lake. Along this depression most of the surface water from the west and southwest of Everett street was accustomed to flow. That depression was nearly two feet deeper or lower than the one east of Everett street. The west side of Everett street was about one foot higher than the east side. The result was that the grading of Everett street, the opening of a culvert across it at the point designated, and the construction of a ditch or drain from Everett along the south side of

Second street to McDonald's lot, would increase the flow of surface water in that direction and upon the lands of the plaintiffs. The threatening of these things, and the alleged insufficiency of the culvert in front of McDonald's, and the alleged consequences which would follow, constitute the substance of the complaint in this action.

The law as to surface water is too well settled in this State to admit of further juridical discussion. The resident owner of a lot fronting upon a public street in a city, cannot be permitted to restrain such municipality from constructing drains along the side or culverts across such streets, or other streets in the vicinity, or from grading or otherwise improving the same, merely because such acts when completed, would greatly increase the flow of surface water upon his land. Waters v. Village of Bay View, 61 Wis. 642; s. C., 21 N. W. Rep. 811; Allen v. City of Chippewa Falls, 52 Wis. 430; S. C., 9 N. W. Rep. 284; Hoyt v. Hudson, 27 Wis. 656; Turner v. Dartmouth, 13 Allen, 291; Barry v. Lowell, 8 Allen, 127; Dickinson v. Worcester, 7 Allen, 19; Flagg v. Worcester, 13 Gray, 601; Parks v. Newburyport, 10 Gray, 28. The same is true with respect to an adjoining land-owner changing the surface of his land, or placing obstructions or embankments thereon, to change the course of surface water thereon. Lessard v. Stram, 22 N. W. Rep. 284; Hanlin v. Railway Co., 61 Wis. 515; S. C., 21 N. W. Rep. 623; O'Connor v. Fond du Lac, etc. R. Co., 52 Wis. 526; s. c., 9 N. W. Rep. 287; Eulrich v. Richter, 37 Wis. 226; Fryer v. Warne, 29 Wis. 511; Gannon v. Hargadon, 10 Allen, 106. This is plainly the rule of the common law, as distinguished from the civil law. Ramsdale v. Foote, 55 Wis. 560; s. c., 13 N. W. Rep. 557. It makes no difference in the application of this rule that land is naturally wet and swampy. 7 Allen, 22. In Waters v. Village of Bay View, supra, one of the principal grounds of the complaint was that the village had "permitted a culvert to become filled up, causing water to dam up and flow back upon" the plaintiffs' lands, but it was held that there was no liability. See, also, Barry v. Lowell, supra.

The only case in this court which tends in the least to support the contention of the plaintiffs is Pettigrew v. Evansville, 25 Wis. 223; and that case, under the findings of the trial court, is certainly exceptional. In that case the trial judge found that all the material allegations of the complaint were true, and the complaint alleged that there was a large pond or body of standing water in the village; that the defendant had commenced the excavation of a large ditch from such waters towards the plaintiff's premises and near thereto, "for the purpose of draining said standing water in and upon said premises; that it was not recessary to so drain said water, either to improve the streets of the village, or for any other purpose connected with the duties of said corporation." Viewed in the light of such findings, the case can

not be regarded as an authority in support of this judgment. Here there was no pond of water, nor anything to indicate that there was a necessity for doing what the defendant threatened to do. The only complaint is against the diversion of surface water, and the consequences thereof. It is surface water, which, it is found, would, "whenever a flood or heavy rain occurred," stand upon dooryards, fill cellars, injure flowers, trees and shrubbery, and fill and flow upon streets. True, it is found that such things would tend to create malaria and injure the public health, and would constitute and create, at every freshet, a public nuisance, from which special damage would inure to the plaintiffs. But the evidence does not warrant such findings. Besides, the action is not brought on the theory of the abatement of a nuisance, and the complaint does not "contain sufficient allegations to warrant equitable interference. Section 3180 Rev. St., as amended by chapter 190, Laws 1882; Denner v. Railway Co., 57 Wis. 221; s. C., 15 N. W. Rep. 158; Stadler v. Grieben, 61 Wis. 505; s. c., 21 N. W. Rep. 629. In no event was the city obliged to provide against xtraordinary rains and floods. Allen v. City of Chippewa Falls, supra. Besides, there is no allegation nor proof of any negligence or unskillfulness in doing the work; as in Spelman v. Portage, 41 Wis. 144; Smith v. Alexandria, 36 Amer. Rep. 788. Nor is there any allegation or proof of any defective plan, or want of skill in the planning of the proposed improvement; as in Evansville v. Decker, 84 Ind. 325; s. C., 43 Amer. Rep. 86; Gould v. City of Topeka, 32 Kan. 485; s. C., 4 Pac. Rep. 822; s. c., 30 Alb. Law J. 351; German Theological School v. City of Dubuque, 17 N. W. Rep. 153; Prideaux v. Mineral Point, 43 Wis. 513. Some courts have held that a defective plan is not a ground of action. Urquhart v. Ogdensburg, 91 N. Y. 67, and cases there cited; and cases cited in 32 Kan. 485, and 4 Pac. Rep. 822.

There is no complaint of any malicious act on the part of any of the officers of the city, by which the plaintiffs were injured. The officers of a municipality improving its streets, solely for the public benefit, in an honest, skillful and careful manner, may, at least to a certain extent, exercise their own judgment and discretion as to the location and construction of drains and culverts, the grading and improving of streets, and the direction in which surface water shall be compelled to flow. This is certainly sufficient to dispose of this case, and is within all the authorities cited; and to these others may be added. Smith v. Gould, 61 Wis. 21; s. c., 20 N. W. Rep. 369; Harrison v. Milwaukee Co., 51 Wis. 662-664; s. C., 8 N. W. Rep. 731; Alexander v. Milwaukee, 16 Wis. 248; Methodist Church v. The Mayor, 48 Amer. Dec.

540.

The judgment of the circuit court is reversed, and the cause is remanded, with directions to dismiss the complaint.

NOTE.-Mr.Washburn, in his work on Easements and Servitudes, has observed that by the rule of the civil law, where adjoining lands are so situated that water falling or collected by melting snows and the like, upon one, naturally descends upon the other, the lower land owner must suffer it to be so discharged; that the upper field has a natural easement to have the water flow off upon the field below. Washb. Easem. & Serv. pp. 353, 355. But, though this rule has been adopted in some of the States, it is not the common law rule, and does not generally prevail in the United States. Railroad v. Stevens, 73 Ind. 281. Surface water is a common enemy against which any land proprietor has the right to fight. Stewart v. Clinton, 79 Mo. 612. The general rule is that the owner of property may take such measures as he may deem expedient to keep surface water from his property, or to turn it off of his property without being liable for injuries sustained in consequence by the adjoining owner. Dillon Municip. Corp. § 798; Ang. Water Cours. § 108; 1 Add. Torts 105; Cooley Torts 574; Hilliard Torts, 584; McCormack v. R. R. 57 Mo. 437. "It makes no difference," say the court in the above case (57 Mo. 437), "that the effect of the improvement is to change the flow of the surface water accumulating or falling on the surrounding country, so as either to increase or diminish the quantity of such water, which had previously fallen upon the land of adjoining proprietors to their inconvience or injury." The same rule applies to water escaped from banks or natural channels of running streams, by overflow. McCormack v. R. R., 57 Mo. 438; Abbott v. R. R,, 20 Cent. L. J. 38; Hoester v. Hensath, 20 Cent. L. J. Ad. xiv.

But in the exercise of these rights the owner must do so in a reasonably careful and prudent manner. Cases last cited. "The owner of land could not collect all of the water falling from his buildings during heavy rains and by means of pipes or gutters, precipitate the water thus collected directly upon the land of the adjoining proprietor. Nor could he collect the surface water from the surrounding country into a large reservoir or pond upon the line dividing his land and the land of the adjofning preprietor, and then turn it loose in large quanties on the land of the adjoining proprietor causing him damage." McCormack v. R. R., 57 Mo. 438; McCormack v. R. R., 70 Mo. 358; Hough, J., dissented holding that the facts were not within the rule. See also Cooley Torts pp. 574-580. So also it was held in Templeton v. Vashloe, 72 Ind. 134: That the owner of the upper fleld may not construct drains or excavations so as to form new channels on the lower field, nor can he collect the water of several channels and discharge it on the lower field so as to increase the wash on the same. See also Livingston v. McDonald, 21 Iowa 164. With reasonably near approximation to accuracy it may be laid down as a general rule that upon the boundaries of his own land, not interfering with any natural or prescriptive water course, the owner may erect such barriers as he may deem necessary to keep off surface water or overflowing floods coming from or across adjacent lands; and for any consequent repulsion, turning aside or heaping up of these waters to the injury of other lands, he will not be responsible; but such waters as fall in rain or snow on his land or come thereon by surface drainage from or over contiguous lands, he must keep within his boundaries, or permit them to flow off without artificial interference, unless within the limits of his own lands he can turn them into a natural water course." R. R. v. Stevens, 73 Ind. 283. The rule applied to muncipal corporations is thus stated by Mr. Cooley: "While they are not bound to construct sewers or drains to protect adjoining owners against the flow of surface water from the public ways, yet if they actually con

struct such as must carry water upon the adjacent lands, they are liable as much as they would be if they had invaded such lands by sending in their servants or otherwise." Cooley Torts 580. See Pumpelly v. Green Bay Company, 13 Wall 166. Though a municipal corporation is not liable for damage caused by a failure to exercise its discretionary powers, or for the injudicious exercise of its discretion (Stewart v. City of Clinton, 79 Mo. 612; Detroit v. Beckman, 34 Mich. 125; Ashley v. Port Huron, 35 Mich. 296); yet a municipal corporation has no greater right than an individual to collect surface water from its lands and streets into an artificial channel, and then discharge them upon the lands of another. Noonan v. Albany, 79 N. Y. 470; Baynes v. Cohoes, 67 N. Y. 204; Ashley v. Port Huron, 35 Mich. 296. "A municipal charter never gives and never could give authority to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for streets or buildings, or by flooding it so as to interfere with the owner's possession. His property right is appropriated in the one case as much as in the other," per Cooley, J., in Ashley v. Port Huron, supra; Pumpelly v. Green Bay Co., 13 Wall. 166; Arimond v. Green Bay, 31 Wis. 316; Eaton v. B. C. & M. R., 51 N. H. 504; Meyers v. City of St. Louis, 8 Mo. App. 267; Smith v. Alexandria, 33 Gratt. 208; Hooker v. New Haven Co., 14 Conn. 146; Glover v. Powell, 2 Stockt. 211; Haynes v. Thomas, 7 Ind. 38; Pratzman v. Indianapolis R. R., 9 Ind. 469; Crawford v. Deleware, 7 Ohio (N. S.), 459; R. R. v. Cummingsville, 14 Id. 523. See, in this connection, Nevens v. Peoria, 41 Ills. 502; Railroad v. Morrison, 71 Ills. 616; s. C., 21 Cent. L. J. 64.

In Shane v. R. R., 71 Mo. 237, Napton, J., applied the theory of the civil law upon which he based his judgment in McCormack v. R. R., 70 Mo. 358, and held that an adjoining owner had no right to erect an embankment so as to stop the flow of surface water, or divert its course so to cause it to flow upon the adjoining land. But this rule was afterwards overthrown by the decision in Abbott v. R. R., 20 Cent. L. J. 38, Sup. Ct. Mo. 1884. See, also, Gannon v. Hargadon, 10 Allen, 106; Hoyt v. City of Hudson, 27 Wis. 656; Petigrew v. Evansville, 25 Wis. 223; Bowlsby v. Speer, 31 N. J. Law, 351; Dickinson v. Worchester, 7 Allen, 19; Chatfield v. Wilson, 28 Vt. 49; Sweet v. Cutts, 50 N. H. 439; Trustees v. Youman, 50 Barb. 316; Waffle v. Ry., 58 Barb. 413; R. R. v. Stevens, 73 Ind. 283; Templeton v. Voshoe, 73 Ind. 134; Stewart v. City of Clinton, 79 Mo. 604.

Whilst the rule of the civil law is said to prevail in Pennsylvania, New Jersey, Illinois, Louisiana, North Carolina' and Iowa, see Kauffman v. Griesner, 26 Pa. St. 411; Earl v. Dehart, 12 N. J. Eq. 280; Butler v. Peck, 16 Ohio St. 334; Minor v. Wright, 16 La. Ann. 151; Overton v. Sawyer, 1 Jones Eq. 308; Livingston v. McDonald, 21 Iowa, 164; Martin v. Jett, 12 La. R. 501; Gillham v. Madison Co. R., 49 Ills. 487; Germley v. Sandford, 52 Ills. 160.

GIDEON D. BANTZ.

1. OFFICER. [De Facto.]-Not Entitled to Salary. A de facto public officer cannot, in California, recover the compensation or salary annexed to the office; for that is incident to the title to the office, and not to its mere exercise. [Dorsey v. Smith, 28 Cal. 21; Stratton v. Oulton, Id. 47; People v. Potter, 63 Id. 127.] Burke v. Edgar, S. C. Cal., June 29, 1885; 6 W. C. Repr. 877.

2. POLYGAMY. [Indictment.]- Not Necessary to Aver that Defendant was a Male Person.—In an indictment under act of congress of March 22, 1882, it is not necessary to aver that the defendant was a male person. United States v. Cannon, S. C. Utah, June 27, 1885; 7 Pac. Repr. 369.

3.

[Evidence.]-Proof of Sexual Intercourse not Necessary.-The misdemeanor against which the act of March 22, 1882, is directed, is the dwelling by a man with more than one woman, in the repute of matrimony; and to establish the fact, evidence of sexual intercourse is not necessary. Ibid; S. P. United States v. Musser, Id. 389.

4. TELEGRAPH COMPANY. [Negligence.]-Direction of Sender to Deliver Message at a Particular Place Should be in Writing.-The proper mode of directing a telegraph company to deliver at a particular place all telegrams directed to a party, is to leave with the company or send to it at its office directions in writing; and a mere verbal instruction or request to a messenger of the company at some other place than its office, cannot be relied on to fix any legal obligation on the company for a failure to so deliver a message. Given v. Western Union Tel. Co., U. S. Cir., S. D. Iowa, June 11, 1885, opinion by Mr. Justice Miller; 24 Fed. Rep. 118.

5.

6.

Delivery to the Wife of the Addressed in Case of his Absence from the City.— Where a telegraph company telephones to the place of business of a party to whom a telegram is directed, and, learning that he is out of the city and will be absent for several days, causes said telegram to be delivered at the residence of the party, to his wife, and then informs the sender of the message of the absence of the party from the city, it has performed its duty. Ibid.

Keeping Employees Informed of Time of Closing other Offices.-It is not the duty of a telegraph company, with offices scattered all over the United States, to keep the employees of every one of its offices in the country, or in any one State, informed of the time when every other office closes for the night. [On this point Mr. Justice Miller said: "It is said that the object might have been accomplished if those in charge of the office at Des Moines had known that the office at Marshalltown closed its business at nine o'clock, and had communicated that fact to Josiah Given. It was shown that they did not know this, and that

they were not furnished with means of knowing when the offices of the company closed for the night at other places than Des Moines. The want of this information is assigned for negligence. But we do not see any sufficient reason for believing that if Mr. Josiah Given had been told, when he offered his last message, that the office at Marshalltown was closed for the night, that he could have provided any other means of repairing the evil, and so the information, if communicated to him, would have done no good. Nor do we see that it is the duty of the Western Union Telegraph Company to keep the employees of every one of its offices in the United States informed of the time when every other office closes for the night. The immense number of these offices all over the United States, the frequent changes among them as to time of closing, and the prodigious volume of a written book on this subject, seem to make this onerous and inconvenient to a degree which forbids it to be treated as a duty to its customers, for neglect of which it must be held liable for damages. There is no more obligation to do this in regard to offices in the same State than those four thousand miles away, for the communication is between them all, and of equal importance."] Ibid.

Liability not that of Common Carrier.-A telegraph company is not an insurer of the delivery of messages; its liability is not like that of a common carrier. [In the opinion of the court it is said by Holt, J.: "A few cases are to be found in which it has been held, that telegraph companies are to be regarded as common carriers; but the later current of authority is not in this direction; and properly so, because the transmission of messages is necessarily subject to the risk of mistake and interruption. The wire is exposed to the interference of strangees; a surcharge of electricity in the atmosphere or a failure of or irregularity in the electrical current may stop communication; and it is continually subject to danger from accident, malice and climatic influence when the company has not the actual, immediate custody of the message as the common carrier has of the merchandise it carries; and it should not, therefore, like a common carrier, be treated not only as a bailee, but as an insurer. Western Union Telegraph Co. v. Blanchard, 45 Am. Reps., p. 480 and cases there cited. It is, however, a public agent; it exercises a quasi public employment; carefulness and fidelity are essentials to its character as a public servant, and public policy forbids that it should abdicate as to the public by a contract with the individual. He is but one of millions; his business will perhaps not admit of delay or contest in the courts, and he is ex necessitate compelled to submit to any terms which the company might see fit to impose; but the law should not uphold a contract under which a public agent seeks to shelter itself from the consequences of its own wrong and neglect. Its Hability for neglect is not founded purely upon contract. It is chartered for public purposes; extraordinary powers are therefore conferred upon it; it has the power of eminent domain; if it did not serve the public it could not constitutionally lay a wire over a man's land without his consent; and by reason of the gift of these privileges it is required to receive and transmit messages, and is liable for neglect independent of any express contract. The public are compelled to rely absolutely upon the care and diligence of the company in the transaction of this business, so wonderful in its growth, so necessary

to the life of commerce and useful beyond estimate: and if it relies upon a notice or contract to restrict its liability, it must be one not in violation of public policy; and in view of the vast interests committed to a telegraph company, the extraordinary powers given it, and the virtual monopoly it almost necessarily enjoys, the courts should compel it nolens volens to perform the corresponding duties of diligence and good faith to the public thereby created. Any other rule would defeat the very purposes for which these companies are chartered, to-wit: the safe and speedy transmission of messages for the public; and while they may reasonably restrict their liability, yet they cannot do so as against their own negligence. They undertake to exercise a public employment, which in many respects is analagous to that of a common carrier; and they must therefore bring to it that degree of skill and care which a prudent man would under the circumstances exercise in his own affairs; and any stipulation by which they undertake to relieve themselves from this duty, or to restrict their liability for its non-use is forbidden by the demands of a sound public policy. To hold otherwise would arm them with a very dangerous power, and leave the public comparatively remediless. W. U. T. Co. v. Fontaine, 58 Ga. 433; Wolf v. Western, etc., 62 Pa. 83; Sweetland v. Illinois, etc., 27 Iowa, 432; Breese v. U. S., etc., 48 N. Y. 132; U. S. T. Co. v. Gildersleeve, 29 Md. 232; West. Union v. Buchanan, 35 Ind. 429; Hibbard v. Western Union, 33 Wis. 558; Telegraph Co. v. Griswold, 37 Ohio, 301; Tyler v. West. Union, etc., 60 Ill. 421; Ellis v. American T. Co., 13 Allen, 234. In this instance the failure did not arise in the transmission of the message, or from any cause not within the appellee's control; but from neglecting to deliver it."] Smith v. Western Union Tel. Co., Ky. Ct. of App., May 28, 1885; 7 Ky. Law Repr. 22, 27.

[Proximate and Remote Cause.] -Damage to Dealer in Stock, though Non-delivery of Message, when deemed Remote.-A telegraph company neglected to deliver a message sent to the plaintiff by his broker informing him of the purchase of stock on his account. The market declining heavily, and the broker hearing nothing from the plaintiff, sold out the stock at a great loss. The plaintiff claiming that if the message had been delivered he should have remitted a margin sufficient to prevent the stock being sacrificed or have directed a sale at the first point of decline, sued the company for his loss on the sale. It was held that he could not recover; the damages being too remote. [In the opinion of the court by Holt, J., it is said: "The line between proximate and remote damages is exceedingly shadowy; so much so that the one fades away into the other, rendering it often very difficult to determine whether there is such a connection between the wrong alleged and the resulting injury as to place them in contemplation of law in the relation or cause and effect. The law does not undertake to charge a person with all the possible consequences of a wrongful act; but only with its probable and natural result; otherwise the punishment would often be entirely disproportioned to the wrong, thereby impeding commerce, and the ordinary business of life, and rendering the rule impracticable. Although the damages may arise remotely out of the cause of action, or be to some extent connected with it, yet if they do not flow naturally from it, or could not in the ordinary course of events have been expected to arise

from it, they are not in a legal sense sufficiently proximate to authorize a recovery; and the rule, which is common to both the common and civil law, causa proxima non remota spectatur, applies. They need not be the immediate result of it-intervening events or agencies may contribute the injury-but they must be certain in their nature and cause, and, as Mr. Greenleaf says, be the natural and proximate consequence of the act complained of. 2 Greenleaf on Evi., p. 210. It is not sufficient that they may be merely a possible result traceable to the cause the complaining party may assign; but they must be such as according to the usual and natural course of things can be considered as fairly and substantially arising from it; otherwise they are not its natural incidents, and can not be considered to have been within the contemplation of the parties when the contract was made. It is not required that they must then have considered them; but they must be such as the parties may fairly be supposed to have considered, or at least would have considered as flowing from a breach of the contract if they had then been informed of all the facts. It was said in Leonard v. Tel. Co., 41 N. Y., 544, that a party is liable for all the direct damages which both parties to the contract would have contemplated as flowing from its breach, if at the time they entered into it, they had bestowed proper attention upon the subject, and had been fully informed of the facts. This is substantially the rule laid down in the leading case upon this question of Hadley v. Baxendale, 9 Exch., 341, and which has been generally followed both in England and this country. Applying this rule to the case in hand it does not seem to us that the appellant has brought his case within it. It is true that the dispatch showed upon its face that it related to a business transaction; and the jury found as a fact that the appellee's agents understood it; but the injury did not arise naturally from its non-delivery, and from the wording of it, it is impossible to suppose that the parties when it was received for transmission could have contemplated the injury now complained of, if they had then looked to its non-delivery. It merely apprised the appellant that his agent had purchased for him a certain amount of stock. The appellee did not know from it or in any way the purpose to be accomplished or that the appellant already owned other stock, or that a knowledge of its contents was necessary to his conduct in keeping a sufficient "margin" with his broker to prevent a loss, or to guide him as to a sale of his stock. There was an intervening step. If the dispatch had been received, then he might or might not have taken it and acted. It rested altogether with him; and is unlike the case of an agent who is ordered by a telegram to do a certain act, but which, by reason of its non-delivery, he does not do, thereby entailing a loss upon his principal. It does not naturally follow that the appellant would have been any better off now if he had have received it. As well might A claim the stakes in a race from a railroad company that by a delay of its train has prevented his horse from arriving at the race in time to take part in it, although if there, he might have been beaten; or a prize offered for the best model of a machine to be exhibited at a certain day, because by a delay in carrying it his model did not arrive in time to be exhibited. The consequence which resulted to the appellant was not the ordinary result of the failure to deliver the message in question, and hence can not be supposed to have been in contemplation when the company undertook to transmit it. If the minds of the contract