OF THE CONTRACT BETWEEN THE COMPANY AND THE PERSONS TO WHOM MESSAGES ARE SENT. The first question might seem to be, Is there any contract whatever between the company and the receiver; are they under any obligation whatever to him; or what basis can there be for any such contract, or what consideration does the company receive from him? We believe it to be generally the case, that the company contract only with the sender, and are under no obligation to any one else. It may well be that the receiver is injured by the default of the company. Because they carelessly mistook the message, or did not deliver it to the right person, or delayed its delivery, or let its contents become known to others, he to whom the message was sent may have lost an opportunity of important advantage, or indeed, may sustain direct loss. But the mere fact of such loss, so caused, would not give him a remedy against the company. This he can have only when malice or other circumstances give him an action of tort, or where the sender is in fact the agent of the receiver, and the company do in fact make their contract with the receiver as a principal, through the sender as his agent. Where this relation is known to the company at the time, and they act with that knowledge, there can be no question of their contract with the receiver. It is a different question, when, although such agency exists, it is not stated to the company in any way, and there was nothing in the message or in the transaction to lead the company to suppose any such agency existed. Is the company now liable to the actual although unknown principal? The adjudications seem to favor the conclusion that this agency might be inferred from, or proved by, evidence that the transaction was for the benefit of the receiver, and that it *257 q was he who was mainly, if not *only, interested therein. (x) (y) Then, if the price paid for the message be paid (x) De Rutte v. N. Y., Alb. & Buf. Tel. Co., 1 Daly, 547. Plaintiff was a commission merchant in California. His brother Theophilus was his agent and 1 It was held that no action would lie against a telegraph company, at the suit of the person addressed, for the misdelivery of a telegram, unless there were either a (1) A telegraph company is clearly not liable to a stranger who acts upon an erroneous telegram shown to him. McCor- * by the sender, it is so far to be regarded as paid by the *257 r receiver, whether charged to him or not as between him correspondent in France, but had no other interest in his business. The latter procured from parties in Bordeaux an order for plaintiff to purchase for them a cargo of wheat, at a price not to exceed twenty-two francs per hectolitre. This order was sent to New York, and thence transmitted by defendant's line to San Francisco. The message received read twenty-five francs instead of twenty-two, and plaintiff, having purchased at that price according to the order, was put to serious loss. On the question of the plaintiff's right to sue, the court say: "The next objection taken by the defendants is, that they entered into no contract with the plaintiff; that they made their contract with Theophilus De Rutte, who sent the message acting as the agent of Callarden & Labourdette. It does not necessarily follow that the contract is made with the person by whom or in whose name a message is sent. He may have no interest in the subject-matter of the message, but the party to whom it is addressed may be the only one interested in its correct or diligent transmission; and, where that is the case, he is the one with whom the contract is made. The business of transmitting messages by means of the electric telegraph is, like that of common carriers, in the nature of a public employment; for those who engage in it do not undertake to transmit messages only for particular persons, but for the public generally. They hold out to the public that they are ready and willing to transmit intelligence for any one, upon the payment of their charges; and, when paid for sending it, it forms no part of their business to inquire who is interested in, or who is to be benefited by, the intelligence conveyed." "But if we leave out of view altogether the question with whom the contract was made, the defendants would still be liable to the plaintiff for putting him to loss and damage through their negligence in transmitting to him an erroneous message.' In Bowen v. Lake Erie Tel. Co., 1 Am. Law Reg. 685, the action was brought by the receiver, but it appears to have been in tort. In N. Y. & W. Pr. Tel. Co. v. Dryburg, 35 Penn. St. 298, the court say: "It is said that, upon the general principles of agency, the company can be held answerable to the sender only. That the relation of principal and agent existed between him and the company, there can be no doubt; but I do not think it equally clear that that relation was not established between Dryburg and the company. Telegraph companies are in some sort public institutions, open alike to all, and largely used in conducting the commerce of the country; and, when a man receives a message at the hands of the agent of such a company, and acts upon it, it seems reasonable that, for all purposes of liability, the telegraph company shall be considered as much the agent of him who receives as of him who sends the message. In point of fact, the fee is often paid on delivery; and I am contract between him and the company, or (possibly) fraud on the part of the company in the transmission, in Dickson v. Reuter's Tel. Co., 2 C. P. D. 62; affirmed in Dickson v. Reuter's Telegram Co., 3 C. P. D. 1, on the ground that the plaintiff could not maintain any action based upon the defendant's negligence, or of an implied representation of authority from the sender. But in some States in this country the person addressed may maintain suit for the misfeasance or even non-feasance of the company. Western Union Tel. Co. v. Dubois, 128 Ill. 248; West v. Western Union Tel. Co., 39 Kan. 93; Western Union Tel. Co. v. Longwill, 21 Pacific Rep. 337 (N. Mex.); Young v. Western Union Tel. Co., 107 N. C. 370; Wadsworth v. Western Union Tel. Co., 86 Tenn. 695; so Relle v. Western Union Tel. Co., 55 Tex. 308; Western Union Tel. Co. v. Adams, 75 Tex. 531. W. Fed. 449, 25 C. C. A. 35, 49 U. S. App. 116, 38 L. R. A. 684; see Telegraph Co. v. Mellon, 96 Tenn. 66, 33 S. W. 725. But the sender may recover for the company's delay in transmitting a reply telegram to him. Western Union Tel. Co. v. Cunningham, 99 Ala. 314, 14 So. 579. The addressee, when not a party to the contract, can recover for the company's negligent delivery only when it is informed that the contract is for his benefit. Western Union Tel. Co. v. Wood, 57 Fed. 471, 6 C. C. A. 432; Same v. Wilson, 93 Ala. 32, 9 So. 414; Same v. Jones, 81 Tex. 271; Telegraph Co. v. Mellon, 96 Tenn. 66, 33 S. W. 725; Alexander v. W. U. Tel. Co., 66 Miss. 161, 5 So. 397; Int'l Ocean Tel. Co. v. Saunders, 32 Fla. 434, 14 So. 148; supra, p. 257 j, n. (x). and the sender, as to afford a sufficient consideration for the implied contract between him and the company. And for any breach he might have his action; and the sender could not sue unless he too sustained an injury, and then only for that injury.1 SECTION VI. OF CONTRACTS BETWEEN SENDER AND RECEIVER BY TELEGRAPH. These are now common. If one party makes an offer and the party to whom it is made accepts it, there is a contract. But some years ago, the question came before the English courts, and afterwards before our own, whether, when the acceptance was made by letter, the acceptance was complete when the letter was mailed, or not until that letter was received. The full presentation of the law on that subject made in a former chapter (y) shows the diffi inclined to think the company ought to be regarded as the common agent of the parties at either end of the wire. But, however this may be regarding the company only as the agent of the sender of the message, is it to be doubted that an agent is liable for misfeasance even to third parties?" The court further held that the rule as to unrepeated messages would not protect the company, as the plaintiff had no means of knowing whether the message had been repeated or not. In Ellis v. Am. Tel. Co., 13 Allen. 226, the action was in tort by the receiver of the message. It was held that the company was protected by the clause as to unrepeated messages, which, it appears, was inserted also in the paper on which the message was delivered to the plaintiff. The court say: "It may be a sufficient answer to such a claim that, according to the reasonable rules by which they were governed in the performance of their undertaking towards the plaintiff, and of which he had notice, they have committed no breach of duty for which they can be held liable to him. Besides, it is difficult to see how the plaintiff, who claims through the contract entered into by the sender of the message with the defendants, which created the duty and obligation resting on the defendants, can claim any higher or different degree of diligence than that which was stipulated for by the parties to the contract. Certainly, a derivative or incidental right cannot be greater or more extensive than that which attached to the principal or source whence such right accrued or was derived." The court say of Dryburg's case: "It differs from this in the essential particular that it was not proved that the defendant in error had any notice or knowledge of the regulations of the company, by which their liability was restricted. - In a recent English case, Playford v. United Kingdom Tel. Co., L. R. 4 Q. B. 707, an action was brought by the receiver upon a case stated without pleadings, and it was held that he could not recover. The court say: "The obligation of the company to use due care and skill in the transmission of the message is one arising entirely out of the contract. The plaintiff, who is a stranger to the contract with the company, cannot maintain an action against them for the breach of it." In Rose v. U. S. Tel. Co., 6 Rob. 305, the plaintiff was a broker, who received a message, and was led by a mistake to sell 5,000 barrels of oil instead of 500. But he disclosed the name of his principal; and it was held that he was not liable on the contract of sale, and therefore could not maintain the action; implying, that otherwise, though only a receiver of the message, he might. (y) Ante, vol. i. p. 483. 1 As to the right of a principal to maintain suit in regard to a message sent by his agent, see Harkness v. Western Union Tel. Co., 73 Iowa, 190; Milliken v. Western Union Tel. Co., 110 N. Y. 403; Elliott v. Western Union Tel. Co., 75 Tex. 18. — W. culty, uncertainty, and fluctuation of the adjudication on this subject. It was not for a long time settled, if indeed it is fully so even now, that the contract* was complete when *257 s the letter of acceptance was mailed, the acceptor having then no knowledge of any withdrawal of the offer. Is this now the law in respect to contracts by telegraph? It certainly is not so settled. There is some adjudication on the subject, but it is contradictory, and leaves the question undetermined. (z) 1 It may be that a custom will grow up, or a course of adjudication take place, which will place the telegraph on precisely the same footing as the mail; and certainly some adjudication and opinions of much weight look in this direction. Such is not our own opinion at present. There may be reasons why this should become a part of the law-merchant; but we cannot think it is so now. (z) The only case in which this question appears to have been directly passed upon is that of Trevor v. Wood, 41 Barb. 255, 36 N. Y. 307. The plaintiffs and defendants were all brokers; the former doing business in New York, the latter in New Orleans. There was an arrange ment between them that negotiations for sales should be conducted by telegraph. On the 30th of January, plaintiffs sent a telegram to defendants, inquiring the price for which they would sell a certain quantity of bullion. Defendants replied on the following day, naming the sum. Plaintiffs immediately replied accepting the offer, and renewed their acceptance on the following day. Owing to some derangement of the line, the two last mentioned messages were delayed, and were not received until February 4th. On the 3d, the defendants, having received no reply to their offer, sold the bullion, and notified plaintiffs of the sale. On this state of facts, the Supreme Court of New York held that the plaintiffs could not recover, as there was no completed contract between the parties at the time the bullion was sold; that the plaintiffs must be regarded as having undertaken to bring home to the defend. ants their acceptance of the offer made; and that the agreement to negotiate by telegraph was a warranty by each party, that his communication should be re ceived by the other. They further held 1 A contract by telegraph, like one by mail, is completed when the acceptance is deposited for transmission in the telegraph office. Stevenson v. McLean, 5 Q. B. D. 346; Haas v. Myers, 111 Ill. 421; Minnesota Oil Co. v. Collier Lead Co., 4 Dillon, 431; Trevor v. Wood, 36 N. Y. 307; Perry v. Mount Hope Iron Co., 15 R. I. 380.-W. The reasons for not holding it may easily be stated. *257 t They, in fact, resolve themselves into two. One is, that the mail is a governmental institution. It is the agent of all the people and of every one of them, and may be considered as, if not guaranteed to a certain extent by the government, still guarded as well as regulated by the power of the government. It is not so with the telegraph. Efforts are now making to place telegraphing in the hands of the government and put it on the same footing as the post-office. It may become so, but it is not so yet. State statutes do not require nor institute a telegraph, nor hold it as public property; they only permit it, and confer upon it certain rights, and lay upon it certain duties. Another reason is, that when a letter is delivered, it is perfectly certain that the assent of the accepting party, in precisely his own words, is, so far as the writer can do it, made known to the offerer. This can never be certain where the message is sent by telegraph. The operator or copyist, at either end, may make a mistake. Accuracy may be made extremely probable by returning the message; but never certain while it is possible that the mistake in sending is corrected, perhaps by another mistake in returning the message. We are of opinion, therefore, that, at present, the contract is not complete, until the message of acceptance is received, or, at least, that the law is not settled otherwise. And so far as the State statutes touch this question, they would seem to require delivery to the receiver, or to make the delivery of the message to the operator alone insufficient. Still another but a connected question may arise, and, indeed, has arisen. There are frequent occasions when a party is bound to give information as soon as possible. This may be by positive and express contract, or by a plain inference from the nature of the transaction, or from the relation and duty of one party to the other. Is the party thus bound obliged to use a telegraph if the same be within his reach? Here, also, we must wait for adjudication before we know certainly what the law is. But there are strong reasons for requiring the use of these means, and they grow stronger *257 u every day. And the adjudication which looks in this direction favors this conclusion. (a) (a) Proudfoot v. Montefiore, L. R. 2 Q. B. 511, action on a policy of insurance. Defence, concealment of material information by the assured. Plaintiff's agent shipped a cargo of madder from Smyrna, on the 21st of January, having previously informed plaintiff of the intended shipment, and its amount. News of the vessel's stranding reached the agent on the 24th. On the 26th, the next post day, he notified plaintiff of the disaster, but purposely refrained from telegraphing, in |