Abbott v. Rose.

tion complained of, the question, whether the paper was delivered as an incomplete paper with blanks to be filled, was taken from the jury, and they were required, if they believed the defendant's testimony, to consider it, when delivered, as complete, and all subsequent filling of blanks, for it does not appear that there were any other changes, as not only without authority, but such as would render the note void even in the hands of an innocent holder. In this there was error. It is, however, said, that if the defendant is believed, whatever the condition of the paper when delivered and the authority which might be inferred from that delivery and condition, it was not delivered as a note, or for the purpose, or expectation, of having it made into a note. This may be true, but how does it affect the case? If the instrument was delivered for any purpose as unfinished, to be perfected by the person to whom it was delivered, then for such purpose such person becomes the defendant's agent, and having furnished him the means with which he has committed a fraud, however uufaithful to his trust the agent may be, the principal must suffer rather than an innocent person.

66

But, assuming that the payee of this note has been guilty of forgery in filling up the blanks, as he is claimed to have done, it does not follow that the defendant is free from all responsibility in the matter. By his statement, he voluntarily signed the blank out of which this note was made, supposing, it is true, that it was for a different purpose. The blank passed from his hands by his consent; a consent, perhaps, fraudulently obtained, but nevertheless a consent. That blank was such as could only be converted into a negotiable note. In it was the name of the payee, and the words or order." When he signed it, there was nothing to prevent his reading it if he had so chosen, and it is difficult to understand how he could have observed it sufficiently to give the description he has, without knowing what it was. Under such circumstances the law presumes his knowledge of its contents. The note, then, owed its existence to some instrumentality on his part. The perfected note was the result of his putting his name to the blank; a result which might have been contemplated as the natural and even probable effect of such an act. The signature contributed to that end very materially, and that end was reached by the confidence, misplaced though it was, which he had in the payee. If, then, this act resulted from negligence, or a want of due care on the part of the defendant, however innocent he might be, he would be responsible

Abbott v. Rose.

to any person equally innocent with himself who is injured by that act. This results not only when the person committing the fraud is the appointed agent of the defendant, but where no such relation exists. In the former case the liability would attach where no negligence is imputable, and in the latter only where it is.

In Somes v. Brewer, 2 Pick. 184, a case which has some signifi. cance in its bearing upon this, PARKER, C. J., on page 202, states the rule with great clearness and force. He says: "It is a general and just rule, that when a loss has happened which must fall on one of two innocent persons, it shall be borne by him who is the occasion of the loss, even without any positive fault committed by him, but more especially if there has been any carelessness on his part which caused or contributed to the misfortune."

In Gibbs v. Linabury, 22 Mich. 479; S. C., 7 Am. Rep. 675, which was an action upon a note delivered by the signer in ignorance of its true character and by means of fraud, it was held that the note was void even in the hands of a bona fide purchaser. But it was found, and made an element in the decision, that the maker signed it "under circumstances devoid of any negligence on his part."

In Washington Savings Bank v. Ekey, lately decided in Missouri and reported in the American Law Register for October, 1873; S. C., 51 Mo. 272, it was held that an alteration of a note after its execution, by filling a blank so as to make it draw interest, when by the agreement of parties it was to bear no interest, would avoid the note in the hands of an innocent holder. But this is inconsistent

with other cases in the same State, as is shown in a note to that case in the Law Register. In Trigg v. Taylor, 27 Mo. 245, the note was held void, but the court says: "If, however, a bill, note or check is so negligently drawn, with blank spaces left for the addition of other words or figures, that alterations can be so made as not to excite suspicion, the loss ought to fall upon the person in fault, according to the familiar rule, that, when one of two persons must suffer by the act of a third, the one who affords the means to the wrong-doer must suffer the loss." The rule is again recognized in Ivory v. Michael, 33 Mo. 398. Upon this question of negligence it can make no difference that the party did not intend to deliver a note. If the delivery itself was through a want of care, the effect is equally injurious, as if the delivery was intentional but with blanks carelessly left unfilled. This doctrine is consistent with that held in a numerous class of cases in which

Abbott v. Bose.

it has been decided that a material alteration of a note after ita execution, without the consent of the maker, avoids it even in the hands of a bona fide holder, such as Waterman v. Vose, 43 Me. 504; Agawam Bank v. Sears, 4 Gray, 95; Wade v. Worthington, 1 Allen, 561; Belknap v. National Bank of North America, 100 Mass. 376, and many others. In these cases the note was delivered in the course of business as a completed instrument with no blank spaces unfilled and no question of a want of care in the delivery, or the form of the paper. The connection of the maker with the note, so far as any act pertaining to its validity is concerned, had entirely ended, and the confidence in and opportunities for fraud to the third party were furnished as much by the one as the other. The two parties were equally innocent, and, therefore, the only question raised was, whether the contract set up was the one into which the party had entered. In the case at bar the liability, if any, rests upon an entirely different ground. It is not claimed that the defendant entered into the contract sued, but that if he delivered the note as an undertaking on his part not finished, but to be afterwards completed, he so far made Persons his agent as to be bound by his acts to an innocent purchaser; or, if he carelessly delivered the paper with his signature attached, he thus furnished Persons the means of fraud and so would be estopped from denying his liability to a bona fide holder for the legitimate results of his negligent acts, and we think the jury should have been instructed in accordance with these views.

Exceptions sustained.

APPLETON, O. J., CUTTING, VIRGIN, and PETERS, JJ., concurred.

Bartlett v. Western Union Telegraph Co.

BARTLETT V. WESTERN UNION TELEGRAPH COMPANY.

(62 Me. 209.)

Telegraph company liability for error in transmitting message-night mes sage · condition in blank.

Plaintiff delivered to defendants, a telegraph company, in Maine, a message to be sent during the night to plaintiff's agent in Chicago, directing him to "ship ten thousand bushels" of corn. Defendants received and transmitted the message, but through an error in transmission, it read, as delivered to the agent: Ship one thousand bushels." The agent bought and shipped one thousand bushels; but some days after, on learning of the mistake in the message, he purchased the other nine thousand bushels, paying ten cents more per bushel therefor, the price having advanced. The message, as delivered to defendants, was written on a blank in which it was provided that the defendants would receive messages to be sent during the night "at one-half the usual rates, on condition that the company shall not be liable for errors or delays in the transmission of delivery, from whatever cause occurring." In an action to recover the additional price paid for the nine thousand bushels, held, (1) that the condition exempting the company from liability was against public policy and therefore void, even though assented to by the sender of the message; (2) that the plaintiff made out a prima facie case by proof of the undertaking, error and damages, and that thereupon the burden of proof was on the defendants to show that the error was caused by some agency for which they were not liable.

YASE submitted for the determination of the court.

C

The plaintiff, on July 12, 1870, delivered to defendants a message to be sent to Hobbs & Co., their agents at Chicago, Ill., directing them to ship ten thousand bushels of corn. As delivered to Hobbs & Co., the message read one thousand bushels, etc., which quantity they bought on plaintiff's account, and shipped. Some days after, Hobbs & Co. received a letter from plaintiff, of the same date as the message, and then discovered the error. Under new instructions, they purchased the other nine thousand bushels needed to fill the order, paying therefor ten cents more per bushel then, the price having risen. To recover the additional $900 so paid, this action was brought. Defense, that the dispatch was written and delivered to the company upon a blank of this tenor, and upon the conditions therein specified, to wit:

"No 45.

Bartlett v. Western Union Telegraph Co.

"HALF RATE MESSAGES.

"THE WESTERN UNION TELEGRAPH COMPANY will receive messages for all stations in the United States east of the Mississippi river, to be sent during the night at ONE-HALF THE USUAL RATES on condition that the company shall not be liable for errors or delay in the transmission or delivery, or for non-delivery of such messages, from whatever cause occurring, and shall only be bound in such case to return the amount paid by the sender.

"No claim for refunding will be allowed, unless presented in writing within twenty days.

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"O. H. PALMER, Secretary.

WILLIAM ORTON, President."

"GARDINER, ME., July 12, 1870.

"Send the following message subject to the above terms, which are agreed to.

"To J. B. HOBBS & Co., Chicago.

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'Ship us ten thousand bushels choice No. 2 (two) high-mixed

corn.

"11 pd. 128, E. D. & A. 7-15 P. M."

"BARTLETT & Woon."

Baker & Baker, for plaintiffs. The stipulations upon the defendants' night-message blanks are unreasonable and void. True v. Int. Tel. Co., 60 Me. 9.

The measure of damages is the difference between what the corn cost on the day the first thousand bushels were bought, and its cost when the rest of the order was filled, after discovery of the error. 60 Me. 9; Squire v. W. U. Tel. Co., 98 Mass. 232; Rittenhouse v. Ind. Tel. Co., 1 Daly, 474.

Bradbury & Bradbury, for defendants. The paper upon which the plaintiffs wrote their message, and signed it, contained a contract, and the fact that it was partly in print is immaterial. Lewis v. G. W. Railway, 5 Hurlst. & Norm. 867; Breese v. U. S. Tel Co., 45 Barb. 274; French v. Buffalo, 4 Keyes (N. Y.), 108; Rice v. Dwight Co., 2 Cush. 80; W. U. Tel. Co. v. Carew, 15 Mich. 524, Squire v. N. Y. Cent. R. R. Co., 98 Mass. 239; Grace v. Adams, 100 id. 505; Camp v. W. U. Tel. Co., 1 Metc. (Ky.) 164; Wolf . W. U. Tel. Co., 62 Penn. St. 83.