¶1dissenting:
¶2The persons present at the time the direction to sell the stock was given, were John D. Parker, the appellee, Thomas Parker, his father, James Mills, and Merrill Follansbee, who testified as follows upon that point:
John D. Parker—“It was then suggested, Englewood or Calumet—to send the dispatch from one of these points, and I told him (Follansbee) to go to one of these places and send the dispatch, and he said he would.”
Thomas Parker—“ I told him (Follansbee) if he could get a dispatch through from Englewood or Calumet, or anywhere, to send it, and have our stock sold.”
James Mills—“Mr. Follansbee then said it was somewhat difficult to get off a dispatch; and it was agreed between them that young Follansbee should go to Englewood or Calumet and send a dispatch", and have the stock sold that day.
¶3That was about the substance of the conversation.”
Merrill Follansbee—“ In execution of Mr. Parker’s order, I sent ray brother to Englewood, and instructed him to telegraph for the sale of half the stocks we held, to all the houses with which we had accounts. The Englewood dispatch was sent to cover Mr. Parker’s order and a portion of what other stock we had there.”
¶4AH' the stock was held for their customers,- and none of it for the Follansbees themselves.
¶5We think the clear preponderance of the testimony is, that Follansbee was directed by Parker to telegraph from Englewood or Calumet, and that, in obedience to orders, the former was bound to telegraph for Parker from one of those places; that the dispatch from Englewood should be considered as Parker’s dispatch, and that he is entitled only to the result produced by that dispatch. The appellants, as agents of appellee, were not at liberty to disregard their instructions. The directions were explicit to send the dispatch from Calumet or Englewood for the sale of their stock. The reason assigned was, that they did not want to be sold out in a panic, which it was feared might ensue before a dispatch could be sent from a city office. Having obeyed the instructions given, appellants ought not to be held liable for the failure of the dispatch to go through. Had they neglected to send a dispatch, as agreed upon between the parties, then, in case the telegram from the “ crossing ” had failed to go through in proper time, they would undoubtedly have been liable for all damages, if any, that appellee might have sustained by reason of not telegraphing from Englewood or Calumet.