if the price paid for the message be paid by the sender, *275 r it is so far to be regarded as paid by the receiver, — whether charged to him or not as between him 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

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 Ia. 190; Milliken v. Western Union Tel. Co. 110 N. Y. 403; Elliott v. Western Union Tel. Co. 75 Tex. 18.

SECTION VI.

OF CONTRACTS BETWEEN SENDER AND RECEIVER BY TELEGRAPH.

These are now common. It is certainly desirable that the law in respect to them should be definitely determined; but it is not so as yet.

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 difficulty, uncertainty, and fluctuation of the adjudication on this subject. It was not

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for a long time settled, if indeed it is fully so even now, that the contract was complete when the letter of 275 s 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 undeter'mined. (z) 1 It may be that a custom will grow up, or a course of

(y) Ante, vol. i. p. 483.

(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 defendants 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 received by the other. They further held that a communication is only initiated when delivered to the operator, and becomes complete only when it comes to the possession of the party to whom it is addressed; and that the rule which prevails as to acceptances made by mail

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.

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.

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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 is it 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,

does not apply to telegraphic communications, giving the reasons stated in the text. This decision was overruled by the Court of Appeals, 36 N. Y. (9 Tiff.) 307, where it was held that contracts made by telegraph are subject to the same rules as those made by letter; that the rule laid down in Mactier v. Frith, 6 Wend. 103, as to acceptance of an offer by letter, governed the present case; and that the contract became binding from the time the plaintiff's offer of acceptance was delivered to the operator. The court

say: "It was agreed between the parties that their business should be transacted through the medium of the telegraph. The object of this agreement was to substitute the telegraph for other methods of communication, and to give to their transactions by it the same force and validity they would derive if they had been performed through other agencies. Under these circumstances, the sending of the dispatch must be regarded as an acceptance of the respondent's offer, and thereupon the contract became complete."

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 *every day. And the adjudication which looks in this * 257 u direction favors this conclusion. (a)

One exception however must still be made. Notices of nonpayment or non-acceptance of negotiable paper remain as yet, in our opinion, on their old footing. That is, if notice be sent seasonably by telegraph and seasonably received, we have no doubt it would be valid. But one bound to send such notice has a right to send it by mail, and if he mails it in season he discharges his duty and secures his rights, whether the letter be received or not. It is not so, if the notice be sent by telegraph, and be not delivered in season. And even in States where by statute legal notices and processes and instruments may be effectually sent or served by telegraph, we hold delivery essential to complete the work, which is only inchoate when the instrument or paper is delivered to the telegraph company.

In our chapter on the statute of Frauds (b) it will be seen that one of the provisions of the English statute that permitting actions to be maintained upon certain contracts only when they are in writing signed by the party to be charged — is generally in force in our country.. The same chapter will show what is the prevailing construction as to this requirement of writing and signing. We think the principles already well established, when applied to contracts made by telegraph, will lead to the conclu

(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 order that plaintiff might insure, which he did before the receipt of the last letter. The court say: "We think

it clear, looking at the position of Rees as agent to purchase and ship the cargo for the plaintiff, that it was his duty to communicate to his principal the disaster which had happened to the cargo; and, looking to the now general use of the electric telegraph in matters of mercantile interest between agents and their employers, we think it was the duty of the agent to communicate with his employer by this speedier means of communication." See also The Convoy's Wheat, 3 Wall. 225.

(b) Vol. III. p. *3.

sion that they satisfy this requirement. This is the effect of some of the State legislation concerning telegraphs. The question has not yet been directly decided; but it has been considered by

the courts, and especially in reference to guaranty. Our *257 v notes will show the adjudication on the subject. (c) 1 Orders for goods are constantly made by telegraph, and they may be accepted by telegraph, by letter, or by act. And neither party will be reponsible to the other for the mistake of the telegraph. (cc) 2

(c) In Howley v. Whipple, 48 N. H. 487, the court say: "When a contract is made by telegraph, which must be in writing by the statute of frauds, if the parties authorize their agents either in writing or by parol to make a proposition on one side, and the other party accepts it through the telegraph, that constitutes a writing under the statute of frauds; because each party authorizes his agents, the company, or the company's operator, to write for him; and it makes no difference whether that operator writes the offer or the acceptance in the presence of his principal, or by his express direction, with a steel pen an inch long, attached to an ordinary penholder, or whether his pen be a copper wire a thousand miles long." So in Dunning v. Roberts, 35 Barb. 463, where it was proved that the defendant was in the office when the dispatch was sent, and agreed to the message as forwarded, the court say: It is urged that the telegram was not subscribed by the defendant, nor by his authority. But it has been deter

mined, that, under the circumstances of this case, the act of the operator in forwarding the telegram was the act of the defendant. In law, therefore, the manipulations of the operator by which the defendant's name became appended to the dispatch were his own, and were equivalent to an actual personal signing of his name with pen and ink." See also Trevor v. Wood, 36 N. Y. (9 Tiff.) 307. Where the telegram is sent from a written dispatch signed by the sender, it is held that the original writing is the proper evidence of the contract, and not the telegram as received. Kinghorn v. Montreal Tel. Co. 18 Up. Can. (Q. B.) 60, Durkee v. Vt. Central R. R. 29 Vt. 127.

1 "There is some difficulty in determining whether the message delivered to a telegraphic office, or that which is delivered to the person to whom it may be addressed at the point of destination, is to be regarded as the original. Perhaps under some circumstances the one or the other may be considered the original." Whilden v. Merchants' Bank, 64 Ala. 1, 30. And in Anheuser-Busch Brewing Co. v. Hutmacher, 127 Ill. 652, the court said: "In Durkee v. Railroad Co. 29 Vt. 127, the rule which we consider the most reasonable one is laid down, viz.: That the original where the person to whom it is sent takes the risk of its transmission or is the employer of the telegraph, is the message delivered to the operator; but where the person sending the message takes the initiative, so that the telegraph company is to be regarded as his agent, the original is the message actually delivered at the end of the line." See also Matteson v. Noyes, 25 Ill. 591; Barons v. Brown, 25 Kan. 410; Smith v. Easton, 54 Md. 138; Wilson v. Minneapolis, &c. R. R. Co. 31 Minn. 481; Howley v. Whipple, 48 N. H. 487; National Bank v. National Bauk, 7 W. Va. 544; Saveland v. Green, 40 Wis. 431; Gray, Tel. §§ 104, 129.

2 If the telegraph company by error delivers a message containing an offer different from that given to it for transmission, it has been held, and it would seem justly, that the telegraph company is to be treated as the agent of the sender, and that the sender is, therefore, bound by the offer as delivered, and an acceptance of it according to its terms creates a contract. Western Union Tel. Co. v. Shotter, 71 Ga. 760; Ayer v. Western Union Tel. Co. 79 Me. 493; but see contra, Henkel v. Pape, L. R. 6 Ex. 7; Verdin v. Robertson, 10 Sc. Sess. Cas. (3d Series) 35; Pegram v. Western Union Tel. Co. 100 N. C. 28; Pepper v. Western Union Tel. Co. 87 Tenn. 554.