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existing at the time of the sale to the same extent and in the same manner as if they were incorporated into a contract of sale executed by the debtor.

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and that the note was good.” The plaintiff was allowed to recover. The court says of the representations: “We must presume that they were legally sufficient to support the action; that is to say, that they were statements of fact susceptible of knowledge, as distinguished from matters of mere opinion or be. lief." See, also, Teague v. Irwin, 127 Mess, 217; Morse v. Shaw, 124 Mass. 59. In two recent casesWay v. Ryther, 165 Mass. 226, 42 N. E. Rep. 1128, abd Kilgore v. Bruce, 166 Mass. 136, 138, 44 N. E. Rep. 108--this court has expressed a disinclination to es. tend the rule which permits dealers to indulge with impunity in false representations of opinion. In the case now before us the notes were turned over to the plaintiff in part payment of the agreed price for laod sold to the defendant. He professed to know, aci probably did know, all about the financial standing of the maker of them, who lived in Boston. The plaintiff lived in a suburban town, and knew notbing of the maker. She was obliged to take the defendant's representations, or to decline to deal with him until she could go to Boston and make an investigation for berself. He told her that he had lent money to the maker, and said, “Do you suppose I would lend me money to any one that was not good?" A representa: tion that a note is as good as gold may be founded os absolute personal knowledge of the validity of the note, and upon an equally certain knowledge of the makera financial ability. The known facts upon which finan cial ability depends may be so clear and cogent as to make the consequent conclusion, which ordipartis would be a mere matter ot opinion, a matter of moral certainty, which can properly be called kuowledge. We cannot say, as matter of law, that this represents tion was not intended to be, and properly understood to be, a representation of facts within the defendant's knowledge. The case of Deming v. Darling, 148 Mass 504, 20 N. E. Rep. 107, differs materially from this at bar. The property to wbich the representation re lated was one of many mortgage bonds issued by a railroad company, of which, in the language of the opinion, the "market prices, at least, were easily at cessible to the plaintiff." The representations which were held to be insufficient on which to found an die tion were “in relation to the value of the bood 18 question, or of the railroad, its terminals, and othe? property which were mortgaged to secure it." The value of articles sold in market, and especially o! railroad property, and of railroad bonds payable to the distant future, is ordinarily only a matter ol opinion. A statement of the value of such properly is very different from a statement that a promissory note, which is almost due, is known to be valid, 401 that the maker of it is a person of such known inte? rity and financial ability that his promise to pay is ** good as that of the State or nation. A statement that a note is as good as gold may be intended to repit sent facts of this kind.

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VENDOR AND PURCHASER FALSE REPRESENTATIONS.-In Andrews v. Jackson, 47 N. E. Rep. 412, decided by the Supreme Judicial Court of Massachusetts, it was held that whether a representation by a vendee that notes of a third person, given in part payment of the price, were “as good as gold,” was a mere expression of opinion, or a statement of fact on which the vendor was titled to rely, was a question for the jury. . The court said:

The principal question in this case is whether there was any evidence to warrant a finding that the false representations made by the defendant in regard to the notes were actionable. This finding is in these words: “I find that the defendant represented these notes to be as good as gold, and that that representation was intended by bim and understood by the plaintiff not to be an expression of opinion, but a statement of a fact of his own knowledge. I find that the potes were worthless." It is contended by the defendant that such a representation is necessarily and as a matter of law a mere expression of opinion, for which, however willfully false, and however dam. aging in the reliance placed upon it, no action can be maintained. It is true that such a representation may be, and oftep is, a mere expression of opinion. But we think that it may be made under such cir. cumstances and in such a way as properly to be understood as a statement of fact upon which one may well rely. In Stubbs v. Johnson, 127 Mass. 219, one of the representations in regard to a note was that it was "as good as gold," and the jury were instructed that, if this was intended as a representation of the financial ability of the maker of the note, it was a statement of a material fact, for which the defendant was liable. This instruction was held erroneous, "because a representation as to a man's tinancial abil. ity to pay a debt may be made either as a matter of opinion or as matter of fact; the subject of the state. ment does not determine which it is." "It is often impossible," says Mr.Justice Colt further in the opin. ion, “to determine as a matter of law whether a state. ment is the representation of a fact wbich the defend. ant intended should be understood as true of his own kuowledge, or an expression of opinion. That will depend upon the nature of the representation, the meaning of the language used as applied to tbe subject matter and as interpreted by the surrounding cir. cumstances in each case. The question is generally to be submitted to the jury." The opinion plainly implies that if the jury had been left to determine whether there was a representation of the maker's financial ability to pay made as a matter of fact, and not as a mere matter of opinion, they might have found against the defendant on his false representation that the note was “as good as gold.” In Belcher v. Costello, 122 Mass. 189, there is also a strong intimation that the rule is as above stated. In Safford v. Grout, 120 Mass. 20, the representations set out in the declarations were that the maker of the note "was a person of ample means and ability to pay said note,

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General Powers and Liabilities of Teleo graph Companies.-The telegraph compass is an agent of the public, carefulness and fidelity are essential to its character, and the law should not uphold a contract ander

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which it seeks to shelter itself from its own Cipher Messages Defined. Telegraph wrong and neglect. Its liability for neglect Companies furnish the senders of messages is not founded upon contract. It is chartered blanks, upon the backg of which for public purposes; extraordinary powers are printed the conditions under which they therefore conferred upon it; it bas the power seek to limit their liability for the misof eminent domain; if it did not serve the transmission or delayed transmission of their public it could not constitutionally lay a wire messages. Among such conditions we find over a man's land without his consent; and that the company shall not be liable in any by reason of the gift of these privileges it is case for errors in cipher and obscure mes. required to receive and transmit messages, sages. It will doubtless be best to explain and is liable for neglect, independent of any what is meant by a cipher message as here express contract. The public are compelled used, consequently I shall define it as to rely absolutely upon the care and diligence follows: A cipher message is one formed of of the company in its transaction of this words made up of letters of the English albusiness, so wonderful in its growth, so neces. phabet which is impossible to translate withsaryto the life of commerce and useful beyond out the aid of a key, privately used, between estimate; and if it relies upon a notice or con- the sender and the addressee of the same. tract to restrict or limit its liability, it must American Rule Criticised.--Various posinot be one in violation of public policy; and tions bave been taken by the courts in the in view of the vast interests committed to a different States in regard to the telegraph telegraph company, the extraordinay powers company's liability relative to cipher disgiven it, and the virtual monopoly it almost patches. The leading case in the United necessarily enjoys, the courts should compel | States being Candee v. West. Union Tel. it to perform the corresponding duties of Co.,3 in which the Supreme Court of Wiscondiligence and good faith to the public there- sin lays down the rule, as follows: "Where by created. Any other rule would defeat the import of a telegraphic message is wholly the very purposes for which these companies unknown to the company's agent, to whom are cbartered, to wit: the safe and speedy the same is delivered for transmission, it transmission of messages for the public; and cannot be assumed that he had in view any while they may reasonably restrict their lia- pecuniary loss as the natural or probable rebility yet they can not do so as against their sult of a failure to send such a message ; own negligence.' They undertake to exercise a and in such case, upon a breach of the conpublic employment which in many respects tract to transmit and deliver, the sender is analogous to that of common carriers; and can recover only nominal damages or the they must therefore bring to it that degree of amount paid for sending the message.” The skill and care which a prudent man would use of the cipher message in commerunder the circumstances, exercise in his own cial intercourse having become 80 popuaffairs; and any stipulation by which they lar, and its utility so well established, the undertake to relieve themselves from this question of a telegraph company's liabilduty, or to restrict their liability for its non ity for an improper or delayed transmission use is forbidden by the demands of a sound of, or the neglect to transmit the same, is one public policy. To hold otherwise would arm of the most important legal problems of the them with a very dangerous power and leave day. The decision quoted from, obliges one the public comparatively remediless.?

sending a cipher message to explain its imEllis v. Am. Tel. Co., 13 Allen (Mass.), 226; N. Y.

port to the agent to whom it is delivered for Cent. R. R. Co. v. Lockwood, 17 Wall. 357; Tyler

transmission. One of the great attractions v. West. Union Tel. Co., 60 III, 421; Stiles v. West. which this mode of communication presents Union Tel. Co., 15 Pac. Rep. 712; West, Union Tel.

is the brevity of dispatch, such abbreviations Co. v. Blanchard, 68 Ga. 299; West. Union Tel. Co. v. Reynolds, 77 Va. 178; West. Union Tel. Co. v. Gris

being used in many cases as will enable the wold, 37 Ohio St, 313; West. Union Tel. Co. V. Adams, 87 Ind. 598; West. Upion Tel. Co. v. Crall, 38 Kap. 679; v. Gildersleeve, 29 Md. 232; West. Union Tel. Cò. v. West, Union Tel. Co. v. Graham, 1 Colo. 230.

Buchanan, 35 Ind. 429; Hibbard v. West. Union Tel. ? Smith v. West. Union Tel. Co., 8 Am. & Eng. Co., 33 Wis. 558; Tel. Co. v. Griswold, 37 Obio, 301; Corp. Cases, 20; West. Union Tel. Co. y. Fontaine, 58 Tyler v. West. Union Tel. Co., 60 III. 421; Ellis v. Am. Ga. 433; Wolf y. West. Union Tel. Co., 62 Pa. St. 83; U. Tel. Co., 13 Allen, 234. Breese y. U. S. Tel. Co., 48 N. Y. 132; U.S. Tel. Co. 3 34 Wis. 471.

190

CENTRAL LAW JOURNAL.

No. 10

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person for whom it is intended alone to un- employed, the price demanded therefor, or derstand it, and hence the vast amount of the skill used in its transmission; nor that business the telegraph operator is capable of such message is in cipher or words the meantransacting in the transmission and delivery ing of which the operator does not know, proof messages. So that an explanation of the vided such message is plainly written and the meaning, importance and bearing of each words therein are in the letters of the English message would be an insufferable annoyance, alphabet."7 It is generally, if not universally and in the multiplicity of messages delivered true, that when one resorts to the telegraph, for transmission would not be remembered, the communication is of such importance that even if the time could be spared to listen to this mode has been selected rather than to it and it would rarely afford any advantage delay the matter by writing a letter; accordto the company after the information was ingly the weight of authority holds that mescommunicated. Although the company sages must be sent in the order of their hand through its agents may not know the meaning ing in, without favor or partiality, without of the particular message, it does know that delay and without reference to the value of messages of great value and importance in- the interests to be affected. Although the volving great losses in case of a failure or

company may make any reasonable restricdelay or mistake in transmission are con: tion as to its liability, the mere fact that a stantly sent over its wires; and it does restriction is printed on the blanks furnished know that it holds itself out to the public by such company for the use of the sender of as prepared at all times and for all per- å message is by no means conclusive. The son3 to transmit messages of this descrip- company fix

its

charge for the tion. In Hart v. West. Union Tel. Co., it transmission of a message not according was said: "Telegraph companies have con- to the importance or value of the matter to ferred upon them by law certain privileges, which it refers, but according to the distance among them, the right of eminent domain to be sent and the number of words used in and they are charged with certain duties, such message. The telegraph, although an among them, the obligation to send properly invaluable invention, is a simple device, and and correctly such messages as are intrusted messages are transmitted by merely clicking to them. Of course, if illegibly written, the letter by letter. If by the uncertainty of the operator may reject a message; but if plainly electrical current or by breaks in the wires written his duty is to send it as written. Why or instruments or by any other unavoidable has he the right to know what the message accident, mistakes or delays are liable to ocrefers to ? In what way would such knowl- cur, the company should repeat every mesa edge aid him in the discharge of his duty to

sage sent. If this should compel it to adsend it correctly?". In West. Union Tel.

vance the present price for transmitting : Co. v. Hyler Bros., it was held :

"When a

message,--let such price be fixed and be uni. telegram is delivered to an operator employed form. But it ought to adopt and use but by a telegraph company for transmission and one of these modes and regulate its prices delivery to the person to whom it is ad. accordingly, for the majority of persons send. dressed, and the consideration for said sery

ing messages rely absolutely upon the com-
ices is paid to and accepted by such operator, petency of the company and do not care to
the law enjoins on such company prompt and take the seemingly superfluous precaution of
skillful performance of its undertaking. It having their messages repeated. All that is
is no defense for the said company when sued required of the company after having ac.
for failure to transmit and deliver a telegram cepted a message in cipher, is to transmit it
as above, that the sender did not inform it
or its operator of its importance, when it ? Gray on Telegraphs; West. Union Tel. Co. v. Fer-
failed to show that if it or its operator had

guson, 57 Ind. 495.
8 Barron v. L. E. Tel. Co., 1 Am. Law Reg. 636

; received such information it would have Berney v, N. Y. & W. Tel.Co., 18 Md. 341; West. changed the method of its transmission or Union Tel. Co. v. Ward, 23 Ind. 377; Leonard v. N. Y. the time in which it was to be sent, the agency

A. & B. T. Co., 41 N. Y. 644; Squire v. West. Unioa

Tel. Co., 98 Mass. 232; Parks v. Alta Cal. Tel. Co., 18 4 Scott & Jarnagin, “Law of Telegraph," $ 404. Cal. 422; Breese v. U. S. Tel. Co., 48 N. Y. 182; 8 Am. & Eng. Corp. Cases, 56.

Shearm. & Red. on Neg., 657; 8 Amer. Rep. 525, 554 6 22 Fla. 637.

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as delivered, should the operator at the other mission, or to use any extra degree of skill or end be uncertain, it can be repeated, but to & different method or agency for sending it compel the sender of such message, to in- from the time or skill used, the agency emform the company's operator to whom he deployed or the compensation demanded for livers the same as to the meaning and import sending an unimportant dispatch. For what of such message is ridiculous. Such knowl- reason then, could he demand information edge cannot aid him in transmitting it, nor that was in no way to affect his manner of can he alter the only course he has to pursue in action or impose on him any additional obsending it. By adopting a rule which does ligation?' Messrs. Scott and Jarnagin in not require his knowledge of the import of their excellent treatise on the Law of Telemessages, the committing of innumerable graphs say: "The telegraph is a modern wrongs, discovery of which is generally im- discovery. Speedy communication is its possible, will be terminated. After the sender boasted merit, the object of its use. It has paid the price asked by the company for is much more expensive than communica- . transmission the contract is performed upon tions by mail, and therefore could not be rehis part. After the company has promptly, sorted to it time were not of its very essence. correctly and in proper turn, sent and deliv- Its tariff of rates is graduated by the number ered the message to the addressee of the of words employed, not by the pecuniary same, its part of the contract has been per- value of the telegram nor by the magnitude formed, and not until then. Should the oper- of the interest it concerns.

With few excepator to whom the same is delivered for trans- tions, imposed by public exigency, it is mission be uncertain as to the letters or words, governed by the law of the mill. Messages it is plainly his duty to inquire, but after hav- must be sent in the order of their handing in ing accepted the message, and the compensa- without favor or partiality, without delay and tion for the same, he is, to my mind, estopped without reference to the value of the interfrom setting up that the message was so il- ests to be affected. The liability of the telelegibly written that he could not properly graph company does not depend upon the send it.

knowledge that the operator may have of the Messages Prima Facie Important.-It can contents of the message. safely be said that the larger part of all mes-- Damages Relative to Cipher Messages,sages sent are of a commercial or business na- The next pbase of this question to be conture which suggests value. The requirements sidered, is the amount of damages recoverof friendship or pleasure can await other able in case of a delay or wrongful transmeans of less celerity and less expense. If mission of a cipher message.

In Candee this be true, why should the law assume that v. West. Union Tel. Co, the rule apas a rule, all messages sent are unimportant, pears as follows: "And in such and that an important one is an exception upon a breach of the contract to transmit of which the operator is to be informed. The and deliver, the sender can recover only common carrier charges different rates of nominal damages or the amount paid for freight for different articles according to their sending the message."

sending the message.” This part of the debulk and value and their respective risks of cision is undoubtedly founded upon the gentransportation, and provides different methods eral rule of compensatory damages as laid of transportation for each. The telegraph down in the celebrated case of Hadley v. companies do not have a scale of prices which Baxendale:12 “Where two parties have made is higher or lower as the importance of the a contract which one of them has broken, the dispatch is great or small. It cannot be said

damages which the other party ought to rethen, that for this reason the operator should

9 West. Union Tel. Co. v. Hyer, 22 Fla. 637; Bowen be informed of its importance when it made

v. L. E. F. Tel. Co., 1 Am. Law Reg. 685, 16 Am, & no difference in the charge of transmission.

Eng. Corp. Cases, 237; Gray on Telegraphs, $ 587. Even if the importance of a message should 10 S. & J. on Tel., § 166; West, Union Tel. Co, v. be disclosed to the operator, the rules of the

Way, 83 Ala. 542; Amer. Union Tel. Co. v. Daughtery,

89 Ala. 191; West. Union Tel. Co. y. Hyer, 22 Fla. 637; company do not allow him to send it out of

West, Union Tel. Co. v. Fatman, 73 Ga. 285; West. the order in wbich it was received, with Union Tel. Co. v. Reynolds, 77 Va. 173.

11 34 Wis. 471. reference to other messages awaiting trans

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In Daughtery v. Amer. Union Tel. should be such as may fairly and reasonably | Co.,16 it was laid down: "The liability of the be considered either arising naturally, i. e., telegraph company does not depend on the according to the usual course of things from knowledge the operator may have of the consuch breach of contract itself or such as may tents of the message." In Amer. Union Tel. reasonably be supposed to bave been in con- Co. v. Daughtery, 17 it was held: "For neglitemplation of both parties at the time they

gence in the transmission of a cipher mesmade the contract, as the probable result of sage, the meaning of which is not explained the breach of it.” As to its application to to the receiving operator, the measure of cipher messages, let us consult the opinion of damages recoverable against the telegraph Chief Justice Stone in Daughtery v. Amer. company is the same as if the message was in Union Tel. Co.:18 “Can such a rule, with ordinary language.' any propriety be applied to transactions or

Conclusion.-From a careful examination dealings in which the same measure of of the cases on this subject, it appears to me, diligence is required in each act or function that after the message has been delivered to without regard to the quantum of interest to and accepted by the telegraph company and be affected by it? Legal dogmas should rest compensation has been paid to it for its on some principle which can be appreciated.” transmission, its duty is to send such mes. In Virginia, Georgia, Florida and Alabama,

sage correctly, promptly and in its proper the courts have laid down the doctrine that

turn, without any question as to its meaning the measure of damages recoverable by the

or import, for a telegraph message is prima plaintiff, is not to be affected by the char

facie important; and if it neglects to, or acter of the message and the knowledge of negligently delays to or wrongfully sends the the company as to its urgency or importance;

same, it is liable to the party injured there. that wbile the company might with some rea- by for the full amount of damages occason refuse to accept a cipher dispatch for sioned and not for mere nominal damages. transmission without having its words or

Although the message be unintelligible letters composing the same explained, yet,

to the company, yet as its undertaking after having accepted it and undertaken to

was to transmit the message promptly and transmit and deliver such dispatch, it can- correctly, both parties contemplated that not escape responsibility for its negligence whatever loss should naturally and in the by setting up its ignorance of the contents

usual course of things follow a violation of or importance of the telegram, but are liable

that obligation, the company should be refor all damages caused by such negligence. sponsible for. When the message is delir. In other words, that the amount of damages ered to the company, there is an implied recoverable in case of negligence in sending promise on its part to transmit it correctly. a cipher dispatch is the same as the amount

It must be sent exactly as written; the operrecoverable in case of a message of which the

ator has no right to change or alter in any company's agent understands the import.| respect the message so as to make it mean In West. Union Tel. Co. v. Way, 16 it was wbat he understands it to mean, even if with: held: "The damages recoverable against a out such alteration it be unintelligible to him. telegraph company for the failure to send a

He has no right to insist on understanding cipher message are the same as if the message

its meaning ; it may be wholly meaningless to was expressed in ordinary language and it is

him and yet iutelligible to the person to whom not necessary that its meaning should be ex

it is addressed. If it be changed by the plained to the receiving agent of the com

operator to mean what he understapds the 13 75 Ala, 16A.

sender to intend, and loss thereby accroe, 14 West. Union Tel. Co. v. Reynolds, 77 Va. 173; West, Union Tel. Co. v. Way, 83 Ala. 542; West. Un.

the company is responsible in damages.'s The ion Tel. Co. v. Fatman, 73 Ga. 285; Daughtery y. company is under no obligation to accept Amer. Union Tel. Co., 75 Ala. 168; West. Union Tel.

messages in cipher of arbitrary charac Co. v. Hyer, 22 Fla. 637; Amer. Union Tel. Co. v. Daughtery, 89 Ala. 191; Sedg. on Dam., 6th Ed. 441;

16 75 Ala. 168. 2 Thomp. Neg., 856; 1 Daly, 474; 1 Am. &{Eng. Law 17 Amer. Union Tel. Co. v. Daughtery, 89 Ala. 191. Reg, 685; 7 Abb. N. C. (N. Y.), 151, 154;12 Civil 18 N. Y. & Wash. Print Tel. Co. v. Dryburg, 85 Ps. Cases, 614; 8. & J. "Law of Tel." Sec.3166.

St. 298; Scott & Jarnagio, "Law of Telegraph," Sec. 15 83 Ala. 542.

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