delivered the opinion of the court.

Had the telegrams from Marley and Jennings been delivered to appellee, no contracts would have been thereby completed. Consequently the case falls within the rule announced in Johnson v. Telegraph Co., 79 Miss. 58, 29 So. 787, 89 Am. St. Rep. 584, and applied in Telegraph Co. v. Adams Machine Co., 92 Miss. 849, 47 So. 412, Telegraph Co. v. Patty Dry Goods Co., 96 Miss. 781, 51 So. 913, and Telegraph Co. v. Crook & Company, 63 So. 350. The court, therefore, erred in refusing defendant’s instructions numbers 4 and 5.

Reversad and remanded.

(dissenting).

Appellee, plaintiff below, made an arrangement with Mr. Marley, of Sumner, and Mr. Jennings, of Greenwood, both planters in the Delta, to go to Vicksburg and there endeavor to secure laborers for these planters. I agree with my associates that the Marley transaction may be eliminated, for the reasons stated in the opinion.

*42I believe, however, that the telegram to Jennings and Jennings’ answer thereto constitute a completed contract, and the failure of the telegraph company to deliver Jennings’ reply made it liable in damages to Cris-coe. Mr. Criscoe made an agreement with Mr. Jennings to go to Vicksburg and see what he could do, and then notify Jennings. After arriving at Vicksburg, Mr. Cris-coe wired Mr. Jennings as follows: “Vicksburg, Miss., 4 — 5'—12. Epsie Jennings, Greenwood, Miss. I failed to see your brother Jackson. If you want the five families place transportation here via A. V. for forty party ticket. You pay for farming families only. No hoboes will appear. You pay no money except transportation until you get them. Wire me, via Postal, at once. J. L. Criscoe.” Mr. Jennings replied promptly as follows: “Greenwood, Miss., May 6, q. J. L. Criscoe, Vicksburg, Miss. Griffith president bank pay tickets six families. Pay you twenty-five family on delivery. A. E. Jennings. ’ ’ This reply was not delivered at all.

It will be observed that Mr. Criscoe’s telegram offered five families, and Mr. Jennings’ reply informed Mr. Cris-coe that the president of the bank would furnish money to pay the transportation for six families, and that Jennings would pay Criscoe twenty-five dollars for each family delivered to him. I interpret this telegram to mean that Jennings accepted the proposition to take the five families Criscoe had wired him about, and it also means, inferentially, that Jennings would take and pay for one more family, if Criscoe saw fit and was able to deliver the extra family. I do not think the two telegrams can be construed to mean that Criscoe made one proposition and Jennings accepted a different proposition. I take it that any business man would have acted on the telegram by forwarding the five families offered, and also the additional family, if he was able to deliver the additonal family.