Breese v. United States Telegraph Company. sponsible for errors or delays in the transmission or delivery of this message, if repeated, beyond the amount of fifty dollars, unless a special agreement for insurance be made and paid for at the time of sending the message and the amount of risk specified in the agreement, and that in case this message is not repeated, this company shall not be held responsible for any error or delay in the transmission or delivery of same beyond the amount paid for transmission, unless specially insured, and the amount of risk paid for and specified in this agreement at the time; nor shall this company be held liable for errors in ciphers, or obscure messages; nor for any error or neglect by any other company over whose lines. this message may be sent to reach its destination; and this company is hereby made the agent of the signer of this message to forward it over the lines of other companies when necessary. No agent or employee is authorized or allowed to vary the terms of this agreement, or make any other or verbal agreement, and no one but the superintendent is authorized to make a special agreement for insurance. This agreement shall apply through the whole course of this message on all lines by which it may be transmitted. Palmyra, March 16, 1865. Send the following message, subject to the above conditions and agreement: To Cammann & Co. No. 56 Wall street, New York. GEO. W. CUYLER, Pt. No. 2. Please write your address under your signature." Cuyler had on hand at his office a lot of these blanks, which the defendant had left there to secure business, and took the blank in question from amongst the others and wrote the dispatch upon it. But neither Cuyler nor the plaintiffs had ever read the printed portion of said blanks. The message thus delivered was duly transmitted from the office at Palmyra, as written; but by some error of some of the de Breese v. United States Telegraph Company. fendant's operators working between Palmyra and New York, the precise cause of which is unknown, it was received in New York and sent and delivered to Cammann & Co. in the following form: "To Cammann & Co., No. 56 Wall street, New York. Buy us seven thousand dollars in gold. Geo. W. Cuyler, Pt." In consequence of the receipt of this message, Cammann & Co. immediately, on the same day, purchased on account of the plaintiffs $7000 in gold coin, and paid for the same the then market price of $1.71 in legal tender notes for each dollar in gold. As soon as possible after the discovery of the error, the plaintiffs notified the defendant of the same, and of the purchase, and tendered to the defendant the gold so purchased, at the price which had been paid, and gave notice that unless the defendant elected to accept said gold at the price paid, the same would be sold in the public market for the highest price and the defendant held liable for the loss. The defendant refused the tender, and the gold was accordingly sold at the best market price, which was $1.51} in legal tender notes, by which a loss was sustained of $1244.25. The plaintiffs seek to recover the amount of this loss, with interest. Charles McLouth, for the plaintiffs. I. The defendant is engaged in a particular branch of business in which the interests of the public, and in this instance the plaintiffs, are deeply concerned. The essential incidents of their business, for which they fix their own price and receive whatever compensation they choose to charge, are speed and accuracy. They engage to do a certain service for a given price. The greatest importance attaches to their strict performance of that, which they fix and receive their own terms for doing. The legal obligation is the same, whether a message is carried upon wires or goods are carried upon a route. The breach of contract in either case may be attended with similar consequences, and the liability should be no less. Breese v. United States Telegraph Company. By the statute of the state of New York, it is made the "duty of the owner or the association owning any telegraph line doing business within this state, to receive dispatches from or for other telegraph lines or associations, and from or for any individual, and on payment of their usual charges for individuals for transmitting dispatches as established by the rules and regulations of such telegraph lines, to transmit the same with impartiality and good faith." (2 R. S. 5th ed. 740, § 11.) Under this statute the company assume to the public the relation of common carriers. The fact that they are bound by law to transmit all messages for individuals, places them in the same position as carriers or innkeepers. (Orange Bank v. Brown, 3 Wend. 158-164. Coggs v. Bernard, 2 Ld. Raym. 909. Sweet v. Barney, 23 N. Y. Rep. 335-337, and cases cited. 2 Kent's Com. 2d ed. 598.) They carry a commodity-intelligence-for the public indiscriminately, and there is perceived no difference whether they carry a message upon wires, or a tangible packet in hand or bag. (McAndrew v. Electric Telegraph Co., 17 Com. B. R. 3, 84 Com. Law.) In Parks v. Alta California Telegraph Company, the plaintiff sent a message requiring his agent to attach the property of one of the plaintiff's debtors. The message was delayed, and other creditors obtained attachments prior to the plaintiff. The debtor became insolvent, whereupon the plaintiff brought the action against the company and recovered. The company were held to be "common carriers" in the strongest language. (Parks v. Cal. Tel. Co., 13 Cal. Rep. 442. 4 Am. Law Reg. N. S. 197-199, Feb. 1865.) The statute in California relating to telegraph companies is the same, in terms, as our statute above quoted. In Dryburg v. N. Y. and Washington Pr. Tel. Co., an individual had telegraphed to the plaintiff, a florist, for “two hand bouquets." The message was delivered "two hundred bouquets," which the florist furnished, but the sender refused to receive them. The florist brought the action against the company, and recovered the value of the two hundred bou Breese v. United States Telegraph Company. quets. The court held that the company was a common carrier, with the same duties and obligations springing from the same sources, i. e. the public nature of their employment, and the contract under which the particular duty is assumed. (N. Y. and W. Pr. Tel. Co. v. Dryburgh, 35 Penn. R. 208. Bowen & McNamee v. Lake Erie Tel. Co., Ohio, 1 Am. Law Reg. 685.) In Stevenson v. Montreal Tel. Co., the Queen's Bench held that the principle governing the liability of the defendant, was similar to that governing railway companies or carriers—that they are bound to discharge the duty which they have undertaken, with care and diligence, and with a reasonable degree of skill and efficiency, and that if they fail in any of these particulars, the person who employed them can recover from them in a court of law compensation in damages for the injury which they have occasioned; not always to the full extent of what such person may have lost, but compensation for any injury directly and naturally arising from the company's default, and such as may consequently be fairly supposed to have been within the contemplation of the parties when the service was undertaken. (MSS. Report.) (But the case was decided for the defendant, on the ground that the company was not liable for the default of its connecting lines.) In Landsberger v. The Mag. Tel. Co., the defendant was held liable for the non-delivery of a dispatch; and it was further held that the company was liable for all the damages sustained-gains as well as losses. (Landsberger v. Mag. Tel. Co. 32 Barb. 530-533.) In Lockwood v. Independent Line of Tel. Co., a merchant in New York ordered a message sent as follows: "Stop sewing pedal braid until I see you." The message delivered was: "Keep sewing pedal braid until I see you." From this error a large quantity of braid was manufactured into unfashionable shapes. The merchant received and sold them and then brought his action against the company for the error, and recovered the full value of the braid and the cost of manufacturing, less the amount for which he sold the unfashiona Breese v. United States Telegraph Company. ble bonnets. (New York Com. Pleas, November 16, 1865, before Judge Daly, MSS. Rep.) In Leonard & Burton v. The Alb. N. Y. and Buffalo Mag. Tel. Co., the Supreme Court of the 5th district held the defendant liable for the whole value, where the word sacks was made to read casks in delivering a message. (MSS. Report. Trevor v. Wood, 26 How. 458-467.) A notice is of no avail (Nevins v. Bay State II. It is claimed that the conditions printed upon the blank used, release the company from liability--the message being neither repeated nor insured as therein provided. The de-, fendant had left blanks at the office of Mr. Cuyler, to secure business. He took the blank from among them to write the message upon. He or the plaintiff had never read the printed portion of the blank, and therefore it must be assumed had no knowledge of it. 1. The law is well settled that common carriers can not limit their liability by notice, though expressly brought to the knowledge of the person with whom they are dealing. (Dorr v. N. J. Steam Navigation Co., 1 Kern. 485–490. Bissell v. N. Y. C. R. R. 25 N. Y. Rep. 445, per Selden, J.) unless the owner assents to its terms. Steamboat Co., 4 Bosw. 225. Hollister v. Nowlen, 19 Wend. 234. Cole v. Goodwin, Id. 251. N. J. Steam Nav. Co., v. Merchants' Bank, 6 How. U. S. Rep. 344-382.) If it is claimed that the conditions are a notice, it will not release the defendants, for (1.) No notice is sufficient, within the cases; (2.) It was not brought home to the plaintiffs; (3.) It appears affirmatively that they had no knowledge and never assented to any of the terms of the notice. In the case of the Steam Nav. Co. cited, Judge Nelson says: "If his liability can be limited, it can not be by any act of his own. He can not do it without the assent of the parties concerned, and this is not to be implied or inferred from a general notice to the public, which may or may not be assented to. Nothing short of an express stipulation, parol or in writing, should be permitted to discharge him from the duties which the law |