1. We can see nothing in the telegraph company penalty act of- October 22d, 1887, which gives color to the theory that a non-resident of a city makes himself a resident within the meaning of the proviso to the second section of the act, by giving to the company an address within the city at which he can be found temporarily. •Since this case arose, delivery to non-residents whose address may be furnished by the senders of dispatches has been provided for by the act of December 20th, 1892. (Pamph. p. .96.)
2. The second section of the act of 1887 deals exclusively with the duty of delivery to residents of cities and towns and to persons residing elsewhere within a limit of one mile from the telegraph office, the language of the section being as follows: “ That such companies *348shall deliver all dispatches to the persons to whom the same are addressed, or to their agents, on payment of any charges dne for the same; provided, such persons or agents reside within one mile of the telegraphic station, or within the city or town in which such station is.” The duty of delivery to other persons is embraced in the general requirement set forth in the first section of the act in this language: “ That from and after the passage of this act, that every electric telegraph company with a line of wires wholly or partly in this State, and engaged in telegraphing for the public, shall during the usual office hours receive dispatches, whether from other telegraphic lines or from individuals ; and on payment or tender of the usual charge according to the regulations of such company, shall transmit and deliver the same with impartiality and good faith, and with due diligence, under penalty of one hundred dollars, which penalty may be recovered by suit in a justice or other court having jurisdiction thereof, by either the sender of the dispatch, or the person to whom sent or directed, whichever may first sue; provided, that nothing herein shall be construed as impairing or in any way, modifying the right of any person to recover damages for any such breach of contract or duty by any telegraph company, and said penalty and said damages may, if the party so elect, be recovered in the same suit.” The only error which the court committed in trying the present case was, m assuming as matter of law that a duty rested upon the company to deliver outside of its office to persons who furnished a definite address within the city, though they might themselves be non-residents of the city. This assumption, we think, is embraced in or underlies the charge of the court as set out in the reporter’s statement. According to the evidence, there was no delay in delivering the message when it was called for at the office. The delay com*349plained of occurred before that time. The question whether due diligence in making delivery required the company to go outside of its office to deliver at the union depot, the place designated beforehand by the plaintiff, was a question of fact for the determination of the jury on the circumstances of the particular case, together with all pertinent facts including, if there had been any evidence on the subject, any right and reasonable usage of the company in dealing with messages of like kind. There should have been evidence of how the company conducted its business with respect to such messages. If it delivered them outside of its office to one customer who furnished his address within the city, it would have to do so to others under like circumstances and conditions; for the duty of observing impartiality is imposed as well as the exercise of due diligence. It is forbidden to the company to be a respecter of persons. Whether under correct instructions from the court the jury could have found on the evidence before them that there was any failure in diligence, we will not undertake to say. There was certainly not that full illumination which the case seemed to require and of which it probably admitted. The plaintiff appears to have rested his right to recover upon the assumption of legal duty which the court recognized. In making that assumption the plaintiff misconceived, and in charging conformably with it the judge misconstrued, the statute. Nor this reason there was error in not granting a new trial. Judgment reversed.
