Breese v. United States Telegraph Company.

the amount of risk paid for and specified in this agreement at the time." Here is no ambiguity whatever, but on the contrary the language is well chosen and the meaning and import perfectly clear and obvious to the most indifferent or careless reader.

The price for transmission, only, was paid. There was no request to have the message repeated, and nothing was paid, or offered, therefor, and no insurance. The defendant is therefore exempt from all liability, for the mistake or error complained of, by the express terms of the agreement.

It is stated, in the case made, that neither the person who signed the message, nor the plaintiffs, ever read the printed "conditions and agreement" thus subscribed. But it does t not follow from this, by any means, that they are not bound by the conditions. They might and should have been read. It was very gross carelessness and negligence not to read them before signing and delivering the message. No notice was given to the agents of the defendant, that the conditions and agreement to which the author and signer of the message had in terms agreed the same should be subject, had neglected to read them, and inform himself as to their import. The presumption, in the absence of any notice, was, that he had read and understood the proposition he had thus accepted; and the defendant's agents had the right to take it for granted that he had, and will be presumed to have done so, and to have sent in good faith the message upon the terms thus proposed and apparently accepted. The plaintiffs should not now be permitted to allege that their assignor, either wilfully shut his eyes and refused to see what was so plainly before him, or that he negligently omitted to use them for that purpose. To allow them now to do this, would operate as a fraud upon the defendant. It would enable one party through his own gross negligence and inattention, to create a liability against another in his own favor, where none was bargained for, or would have been, and which was expressly stipulated against. The principel of estoppel in pais applies in full

33

(leap.)

Breese v. United States Telegraph Company.

force against the plaintiffs' claim. Their assignor, by his conduct, led the agents of the defendant to suppose and believe that he had agreed to the defendant's propositions, and they can not now gainsay the apparent agreement. In Lewis v. The Great Western Railway Co., (5 H. and N. 867,) which was a case where the person delivering goods to a carrier filled up and signed a receiving note under a printed head of "Conditions," under which were certain printed conditions, and which the party afterwards, in an action for the loss of the goods, claimed not to have read. Baron Bramwell said: "It would be absurd to say that this document, which is partly in writing and partly in print and which was filled up, signed and made sensible by the plaintiff, was not binding upon him. A person who signs a paper like this must know that he signs it for some purpose, and when he gives it to the company must understand that it is to regulate the rights which it explains."

I can not refrain from observing here, that the business in which the defendant is engaged, of transmitting ideas only from one point to another, by means of electricity operating upon an extended and insulated wire, and giving them expression at the remote point of delivery, by certain mechanical sounds, or by marks, or signs, indented, which represent words or single letters of the alphabet, is so radically and essentially different, not only in its nature and character, but in all its methods and agencies, from the business of transporting merchandize, and material substances, from place to place, by common carriers, that the peculiar and stringent rules by which the latter is controlled and regulated, can have very little just and proper application to the former. And all attempts heretofore made by courts to subject the two kinds of business to the same legal rules and liabilities will, in my judgment, sooner or later, have to be abandoned, as clumsy and undiscriminating efforts and contrivances to assimilate things which, have no natural relation or affinity whatever, and at best but a loose or mere fanciful resemblance.

Breese v. United States Telegraph Company.

The bearer of written or printed documents and messages, from one to another, if such was his business or employment, might very properly be called and held a common carrier; while it would obviously be little short of an absurdity to give that designation or character, to the bearer of mere verbal messages, delivered to him by mere signs or speech, to be communicated in like manner. The former would have something which is, or might be, the subject of property, capable of being lost, stolen and wrongfully appropriated; while the latter would have nothing in the nature of property which could be converted, or destroyed, or form the subject of larceny, or of tortious caption and appropriation, even by the "King's enemies." But even if the defendant is held to be an ordinary common carrier, it had the right to limit its liability by express contract, as is now well settled. (Bissell v. New York Central Railroad Company, 25 N. Y. Rep. 442. Dorr v. N. J. Steam Navigation Co., 1 Kern. 485.)

In MacAndrew v. The Electric Telegraph Co., (17 Com. B. 3, 84 E. C. L.) it was held that a mere regulation of the corporation, similar to the one here in question, was a reasonable regulation under the act of 16 and 17 Vict. and shielded the corporation from liability for the mistake of sending the message to Southampton instead of Hull. And so in Camp v. The Western Union Telegraph Co., (1 Metc. Ky. R. 164,) it was held that a printed notice similar to the conditions. here, not in the form of an agreement, was a reasonable regulation in behalf of the company, and binding upon the person delivering the message to be transmitted. Our statute providing "for the incorporation and regulation of telegraph companies," (Sess. L. of 1848, ch. 265, § 11,) makes it the duty of the owner of any telegraph line, doing business within this state, to receive dispatches, and on payment of their usual charges for transmitting dispatches "as established by the rules and regulations of such telegraph line, to transmit the same with impartiality and good faith," under a certain prescribed penalty. Thus the statute, it will be seen, recog

Breese v. United States Telegraph Company.

nizes the right of the owners of these lines of communication to establish "rules and regulations" for the transmission of communications delivered to be forwarded, in nearly the same terms as the act of 16 and 17 Vict. The legislature obviously never intended that these corporations, or persons, engaged in this novel, interesting and extraordinary business, should be placed upon the same footing in respect to liability with ordinary carriers of goods.

There is no question here of gross negligence, against which the defendant could not, as carrier even, shield himself by contract. The case states that the message was duly transmitted from the office at Palmyra, as written and delivered, "but by error of some of defendant's operators, working between Palmyra and New York, the precise cause of which is unknown," it was received in New York and delivered as an order to purchase $7000 in gold instead of $700, according to the message delivered and duly transmitted at Palmyra. In view of the nature of this business, and of the peculiarly delicate and subtle agencies and forces employed in carrying it on, it is impossible for the court to say, from this statement, that the error complained of, was the result of any negligence or inattention whatever on the part of the agents employed by the defendant. For aught we can see, it may have been produced by causes over which no person had any control. And these considerations show, most forcibly, the importance and necessity of allowing those carrying on this business, the right to make rules and regulations and contracts limiting and controlling, to a reasonable extent, the grounds and measure of their liability.

For the foregoing reasons, I am of the opinion that the facts stated in the case made do not entitle the plaintiffs to any recovery. The defendant must therefore have judgment for its costs.

[MONROE GENERAL TERM, March 5, 1866. Welles, E. D. Smith and Johnson, Justices.]

WILLARD VS. MERRITT.

Whatever may be the rule in regard to the duty of a purchaser of goods to examine for himself, where no questions are asked by him and nothing said or done by the vendor to mislead or deceive, it is clear that the purchaser has the right to trust to the declarations of the vendor as to the condition of the thing purchased, and may omit to make any examination, without losing his right to maintain an action for fraud, in case fraud is practised by the vendor. Where, in an action for fraud in the sale of wool, the fraud consisting mainly in the delivery of several ounces of unwashed tags, and dirty wool, concealed in the inside of each fleece, as good marketable wool, there was evidence on the part of the plaintiff to show that when the defendant delivered the wool he declared expressly that it was in good condition, and that it appeared to be so, on the outside; Held that the jury had the right to find, from the evidence, that the defendant deceived and misled the plaintiff in respect to the quality and condition of the wool inside.

Although it may be that an action will not lie for a breach of an executory contract for the sale of goods, where they do not come up to the requirements of the contract, after the property has been accepted in fulfillment of it, yet the acceptance of the goods, in such a case, can never operate as a waiver, or discharge, of a fraud practised by the vendor, upon delivery, to induce such acceptance.

THE defendant, who is a farmer residing at Barrington,

Yates county, made a contract on the 26th day of June, 1860, at his residence, with the plaintiff's agent to sell the wool of his flock, (not at that time sheared,) to the plaintiff, at 47 cents per pound, payable on delivery of the wool to the plaintiff's agent at Hammondsport. He represented the wool to be well washed, and agreed to put it up in as good condition as it was the year before, when the same agent bought the wool and found it clean and free from tags. The wool, one hundred and fifty fleeces, was delivered and paid for on the 7th July following, apparently in good order — the defendant stating that he thought it to be in as good condition as the year before. Afterwards, on opening the fleeces the wool was found to be in a very filthy condition, containing much dirt and gravel, and about one half pound of tags was found secreted in each flecce. An unusual quantity of twine was also found tied around the fleeces. The wool was proved to be no better than "unwashed wool," and worth one third less