10NES
v.
WESTERN O. TEL. CO.
717
V. WESTERN
U.
TEL.
CO.
(Oircuit Oourt, E. D. A1'kansa8.
October Term, 18B3.) MEs-
LIABILITY OF TELEGRAPH COMPANIES FOR ERRORS IN TRAN8MJSSIOW OF SAGES-PRINTED CONDITIONS ON BJ,ANKS.
'fhe printed conditions on the half-rate message blanks of the Western Union Telegraph Company are reasonable and valid, to the extent of protecting the company from damages for any error or mistake occurring in the transmission of a half-rate message, unless it is shown affirmatively that such error or mistake was the resul t of gross negligence or fraud; and mere proof of the fact that there is a mistake of a word or a figure in the message as delivered, is not in itself sufficient evidence of negligence or fraud to render the company liable beyond the amount stipulated for in the contract of the parties.
At Law. M. W. Benjamin, for plaintiff. U. M. &; G. B. Rose, for defendant. CALDWELL, J. The plaintiff delivered to the defendant at Little Rock, for transmission to St. Louis. a message written on one of the half-rate night message blanks containing the usual printed tions. The following is a copy of the printed conditions and the m(;lssage written thereunder: "THE WESTERN UNION TELEGRAPH COMPANY.
"Half-Rate Message· .. The business of telegraphing is liable to errors and delays, arising from causes which cannot at all times be guarded against, including sometimes negligence of servants and agents whom it is necessary to employ.. Most errors and delays may be prevented by repetition, for which, dUrinS the day, half price extra is charged in addition to the full tariff rates. "The Western "Gnion Telegraph Company willl'eceive messages, to be sent without repetition during the night, for delivery not earlier than the of the next ensuing business day, at one half the usual day rates, but in no case for less than twenty-five cents tolls for a single message, and upon the express condition that the sender will agree that he will not claim damages for errors or delays. or for non-delivery of such messages, happening from any cause, beyond a sum equal to ten times the amount paid for transmission; and that no claim for damages shall be valid unless presented in writing within thirty days after sending the message. . . . . "Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a great.er distance a special charge will be made to cover the cost of such delivery, the sender hereby guarantying payment thereof. . . . ., "The Company will be responsible .to the limitq! its lines only, for messages destined beyond, but will. act as the sender's agent to dl'Iiver the message to connecting companies or calTiers; if desired,' without charge and Without liability. . "A. R. BREWER, Secretary NORVIN GREEN, President. "Feb. 24, "Send the following half-rate message, subject to the abOve terInS, Which are agreed to:
718
REPORTER.
"To A. Kent & Co. 318 Chamber 01 CommerfJe, St. Louis, Mo.: Buy ten June wheat Chicago account .Boyd and five account Clark. Quote June New York. . T. H. JONES. the notice and agreement at the top."
When the message was delivered to the plaintiff's brokers in St. LQuisthi:) word "cheap" had been substituted for "Chicago," and the plaintiff alleges that by reason of this mistake he was damaged to the amouut of $7GS.75 . . he defendant interposes three defenses: (1) Contributory negliT gence, in this, that the word "Chicago" in the message was so badly w.ritteI). as to be easily mistakeu for the word "cheap;" (2) the printed conditions on the blank on which the message was written, to the effect that the· company would not be liable for damages for errors or delays, or for non-delivery of such message happening from any cause, beyond a sum equal to ten times the amount paid for transmis. sion; and (3) that the message was intended to procure the persons to whom it was addressed to buy in the market what are commonly known as "futures," and had relation, therefore, to gambling transactions,out of which no valid or binding agreement or legal obligatifln could arise against anyone. In the view the court takes of the -ease,it -is only necessary toeonsider the second defense. With knowledge of the fact that it was open to him to send the message at full rates, and secure accuracy in its tra:nsmission by having it repe'ated, the plaintiff elected to send it at half rates, with full knowlege of printed conditions on the blank on which the message. was written'; He must. therefore be held to have agreed to these conditions; ,and he is bound thereby to the e-gtentto which the conditions are yalid apd obligatory. , The plaintiff has offered no evidence of negligence on the part of the defendant other than that the mel'lsage as delivered differed from the ·messa.ge tl.swritten in the particular mentioned. There is no evidence tending to show when, where, and how the mistake occurred. The defendant has shown that it had suitable instruments and wires for tranl:lmitting the message, and that it was sent over the wire by It skillful and operator. There;isaconflict of judicial opinion as to the law applicable to ,tqefapts.oft4is case. It would serve no useful purpose to review :th{l'(lailes.iQ detail and restate the reasoning of the courts pro and con ;onthe question. That has been done often enough already. Nor isit necessary in thiE! case t.o inquire whether the conditions on which thesel1atf to be sent, aie effectual to protect .telegraph.. all as, for instance,for not sending or not delivering the message, or lD any case of confessed negligence od1'3ud. .ltis.sufficient to say that the weight of authority andthe.abJl;lstand best reasoned cases establish the doctrine that the containedjp. on w4ich.the pl.aintiff wrote his message and to which he assented,are reasonable and valid to the ex-
"
ROti,EDE V. J,ERSEY CITY.
tent of protecting the telegraph company from damages for or mistake occurring in the trllnsmissionof the message, unless it is shown affirmatively that such ,error or mistake was the result of gross negligence or fraud on the part of the company; and that mere proof .of the fact that there is a mistake of a word or a figute in the message is not sufficient evidence of negligence or fraud to render the company liable beyond the amount stipulated for in the contract of the parties. Western U. Tel. Co. v. Nei.ll, 57 Tex. 283; S. C. 13 Cent. Law J. 475; Aikin v. Western U. Tel. Co. 5 S. C. 358; Pinckney v. Western U. Tel. Co. Sup. Ct. S. C. MS. Op. Nov. Term 1882; Ellis v. Amer. Tel. Co. 13 Allen, (Mass.) 226; Grinnell v. Western U. Tel. Co. 113 Mass. 299; Schwartz v. Atlantic et P. Tel. Co. 18 Hun, 157; Becker v. Western U. Tel. Co. 11 Neb. 87; rs. C. 7 N. W. Rep. 868;J S. C. 23 Alb. Law J. 277; Sweatland v. Ill. <t M. Tel. Co. 27 Iowa, 455; White v. Western U. Tel. Co. 14 FED. REP. 710. Under his contract with the defendant the plaintiff is entitled to judgment for 10 times the amount paid by him for transmitting the and no more. JudgmelJ,t accordingly. '
Rou:em: v.
MAYOR, ETC., Ol" JE:RSE:Y CITY.
(Oircuit Courf, D. New Jersey-
December 12,1883.)'
A bona fide holder of municipal bonda cannot be prejudiced br the fact that the merelyJormal requirements (If the statute authorizing their IBllue were not compliecl with. " COUPONB. " ',. ,;
Overdue ,and utipaid couponB attached to municipal bond!! 81,lfficieni to put a purchaser upon inquiry, so as to charge hiw,'with*otice 6J defecteof title. '. ., . . ,'
In Debt. Robt.. 0. Babbitt, for plaintiff. Allan L. McDermott, for defendant. NIXON, J. The principle is well settled by the supreme court that in a suit by Ii. bonafide holder against a municipal corporation to re'.;. cover the amount of coupons due orbondsissued.nnderauthority conferred by law, no questions of ,form :mere1y,or irreg'ullirityor fraud or misconduct on the 'part of the agents of the corporation,can be considered. The only matters left 'open in this case lor inquiry are (1) the auth,ority, to issue the bonds by the lawBof the state, and (2) the bona fides of the'bolder; East Lincolnv. Davenport, 94 U. S:. 801; Pomptonv. Codper ,Union, 101 U. S. 196; Copper Y. ][dyor, de.; oj"leTsey City. 15, Yroom,63.4.,