§ 484. A local postmaster is a public officer, and as such answerable to the government and to individuals for a faithful and proper discharge of his duties; to the government for the discharge of his general duties imposed by statute;' and to individuals, in either a Federal or a State court, for any failure in diligence resulting in damages, or for any misfeasance or nonfeasance resulting in special damages. E. g., a postmaster is liable for negligence, in permitting a letter containing money to be stolen from his office; and in an action of trover, for unlawfully refusing to deliver mail matter to an individual, to whom it is addressed 3-even letters deposited for delivery at the same office.

§ 485. One officer is not answerable for another; and it has been thought that a mail contractor is not liable to an individual for money lost through the carelessness of his agents carrying the mail; he is certainly not chargeable on the theory of contract, and he can hardly be considered an officer of the Government in the strict sense of that term.5 And yet the contractor has been held liable to third persons for an injury sustained through the negligence of his agent, on the ground of the public duty assumed by him, under the provisions of the statute law; and there does not seem to be any valid ground for a distinction between the liability of an officer and that of a contractor employed by the Government under the provisions of a statute.7

§ 486. Telegraph. Our telegraph companies render the community a service similar to that of the Post-Office Department; they carry and

1 Strong v. Campbell, 11 Barb., 135, relates to the statute providing for the publication of a list of unclaimed letters in the paper having the largest circulation.

2 Coleman v. Frazier, 4 Rich. (S. C.), 146; Bolan v. Williamson, 1 Brev., 181; S. C., 2 Bay, 551; Bishop v. Williamson, 11 Maine, 495.

3 Teall v. Felton, 3 Barb., 512; S. C., 1 N. Y., 537; S. C., 12 How. U. S., 284. Nevins v. Bank of Lansingburgh, 10 Mich., 547; Bank of Columbia v. Lawrence, 1 Peters, 578.

5 Conwell v. Voorhees, 13 Ohio, 523.

6 Conwell v. Voorhees, 13 Ohio, 523. A mail contractor is not liable to the owner of a letter containing money, transmitted by mail, and lost by the carelessness of contractor's agents carring the mail. The contractor is regarded as a public agent, and not as a common carrier. Sawyer v. Corse, 17 Gratt., 230. Contra: A mail carrier is not an officer of the Government, but is the private agent of the contractor for carrying the mail, and the contractor is liable to third persons for any injury or loss, as of money in a letter, sustained through the negligence or default of such agent in the performance of his duties. Seo Hall v. Smith, 2 Bing. R., 156; 9 Eng. C. L. R. 357; Holliday v. St. Leonards, 103 Eng. C. L. R., 192.

7 Robinson v. Chamberlain, 34 N. Y., 389; Hicks v. Dorn, 42 N. Y., 47, Hover v. Barkhoof, 44 N. Y., 113.

deliver messages for all persons, indifferently, for hire; they resemble common carriers, in the duty they assume to transmit messages for all persons alike, without discrimination or preference; and they differ from a common carrier in some important particulars; notably, in the liability which they assume for the safe and accurate delivery of messages.2 Being incorporated, these telegraphic companies possess the powers and come under the liabilities prescribed by statute; namely, the powers conferred, to construct their lines and carry on the business; and the duty imposed to receive dispatches from and for other lines, and from and for any individual, on payment of their usual charges, and to transmit the same with impartiality and good faith. For the rest, they are generally left to transact their business under the principles of the common law; the statutes in the different States being the same in their general scope and provisions.

5

§ 487. These companies are not under the same liability as common carriers; their liability is regulated by contract and the nature of their public employment. In the absence of a special contract limiting their liability, they are bound to transmit messages in the order received by them, and with a care and diligence proportionate to the importance of the business; they do not insure the safe and accurate transmission of messages. And where they stipulate that they will not be liable for the accuracy of the message as delivered, unless it is repeated at half price, they are not liable for an error in its delivery, unless it is repeated; a rule to this effect is not regarded as unreasonable. And when the message is written upon a blank embodying the limitation, the rule is to consider the printed notice as a proposition, which is assented to by the act of sending the message. The object to be secured by repeating the message, is accuracy in its delivery; and hence the stipulation will

6

8

1 Breese v. U. S. Telegraph Co., 48 N. Y., 132; 41 N. Y., 544, 571.

2 Id.; Leonard v. N. Y. &c. Tel. Co., 41 N. Y., 544, 569.

32 R. S., 733, 740, 5th ed.; ch. 265, Laws of 1848; ch. 559, Laws of 1855; ch. 425, Laws of 1862; ch. 491, Laws of 1870; interpreted in 48 N. Y., 132,

137.

48 Amer. Law Rev., 457; the statute of Maine is a little more specific.

Breese v. U. S. Tel. Co., 48 N. Y., 132, 141; S. C., 45 Barb., 274; De Rutte v. N. Y., A. & B. Tel. Co., 1 Daly, 547 ; S. C., 30 How. Pr., 403. Contra: Parks v. Tel. Co., 13 Cal., 422.

6 Western Union Tel. Co. v. Carew, 15 Mich., 525. 'Breese v. U. S. Tel. Co., supra, 48 N. Y., 132.

Idem; Camp v. Western Union Tel. Co., 1 Met. (Ky.), 164; Ellis v. Amer. Tel. Co., 13 Allen, 226; M'Andrews v. Electric Tel. Co., 33 Eng. Law and Eq.,

not relieve the company from its liability for omitting to send the message, or for any other default or misconduct.1

§ 488. Under the statute of New York telegraphic corporations have power to make such prudential rules, regulations and by-laws as they deem necessary in the transaction of their business, not inconsistent. with the laws of the State or of the United States; and acting under this power, generally conferred upon these corporations, they may limit their liability for mistakes, not occasioned by gross negligence or willful misconduct, by a notice brought home to the sender of a message; as it is presumed to be, where he writes the message upon a blank embodying the notice.2

§ 489. The liability of a telegraphic company to the sender of a message is based upon contract; the company impliedly engages to use all reasonable care and diligence to transmit the message promptly and accurately. Delay in sending the message may be excused, where the sending of it becomes impracticable by a storm or by the sudden sickness of an operator, temporarily preventing its transmission. And an error or mistake in the delivery may be excused, where it is attributable in part to the sender, or where it occurs without any want of care or diligence on the part of the company.3 Prima facie the company is liable for an error in the delivery of a message; and the rule is the same where the message is couched in technical terms. Hence, in an action by the sender, proof of error in the delivery entitles him to recover; and in an action by the receiver, the plaintiff is prima facie entitled to recover on proving that a different message was delivered from that which was sent.5

§ 490. A telegraphic company is not answerable for the transmission of messages to a point beyond the termination of its line. Its engagement, like that of a common carrier, impliedly binds the company for the prompt and accurate transmission of the message over its line, and

1 Birney v. N. Y. & W. Tel. Co., 18 Md., 341; Mann v. Western Union Tel. Co., 37 Mo., 472; U. S. Tel. Co., 55 Penn. St., 262.

233 Eng. L. and Eq., 180; 18 Md., 341; 35 Penn. St., 298; 13 Allen, 225; 15 Mich., 525; 37 Mo., 472; 1 Metcalfe (Ky.), 164; Lewis v. Great Western R. Co., 5 Hurlstone and N., 867; Graco v. Adams, 100 Mass., 505; Wolf v. West. U. Tel. Co., 62 Penn. St., 87.

3 Per Hunt, J., in Leonard v. The N. Y., A. & B. Electric M. Tel. Co., 41 N. Y., 544, 572; Brownell v. Flagler, 5 Hill, 282. Delay unexcused renders the company liable for damages: West. Union Tel. Co. v. Ward, 23 Ind., 377.

4 Rittenhouse v. Ind. L. Tel., 1 Daly, 474; S. C., 44 N. Y., 263.

Idem; West. Union Tel. Co. v. Carew, 15 Mich., 525; Birney v Tel. Co 18 Md., 341.

its delivery to the succeeding line; but where it makes an agreement and receives pay for the whole distance, by an arrangement with other companies, it is liable according to the terms of the contract, and must answer for the negligence of its auxiliaries.2 The mere fact of receiving pay for the whole distance does not establish the contract, or prove a partnership between the lines, or even a mutual agency. The statute itself establishes the relation of the connecting lines; so that in the absence of other proof the delivery of a message to the next line, is in effect like the transfer of goods by one carrier to a succeeding carrier.3 The line commencing where another ends, is obliged to receive and send forward the message; and is not liable for an error caused through the negli gence of a prior line; it being its duty to transmit and deliver the exact message it receives.5

§ 491. In what relation does the telegraphic company stand toward the sendee of a message? This will depend upon the circumstances; the company holds itself out to the community as ready and willing to transmit intelligence for any and all persons, on payment of their established charges; and the contract is presumed to be made with the person bearing the charges and interested in its correct and diligent transmission; just as the contract with a carrier is presumed to be made with the owner of the goods delivered to him, whether that be the consignor or the consignee."

When a message is not sent on account of the party to whom it is addressed, it cannot be said that the telegraphic company makes a contract with him for its transmission. Its obligation to transmit and deliver is imposed by law; it is grounded upon the statute and upon the public employment assumed by the company; and there may be circumstances under which the company must be held liable to the sendee for its failure to transmit the message." Assuming to send the message, the company must do so with diligence and accuracy, and it is liable to the sendee in damages, when through its negligence it delivers a dif

Leonard v. The N. Y., A. & B. Electro M. Tel. Co., 41 N. Y., 544.

2 De Rutte v. The N. Y., A. & B. Tel. Co., 1 Daly, 547, 553; Quimby v. Vau derbilt, 17 N. Y., 306; Collins v. R. R., 7 H. L. Cas., 194; see Stevenson v. The Montreal Tel. Co., 16 Upper Canada, 530.

3 Baldwin v. U. S. Tel. Co., 45 N. Y., 744; 1 Lans., 125; 54 Barb., 505; Squire v. W. U. T. Co., 9 Mass., 232.

4 U. S. Tel. Co. v. West. U. Tel. Co., 56 Barb., 46.

La Grange v. S. W. Tel. Co., 25 La. Ann. R., 333; 41 N. Y., 570.

6 De Rutte v. The N. Y., A. & B. Tel. Co., 1 Daly, Trevor v. Wood, 41 Barb., 255; S. C., 36 N. Y., 307.

47, 555.

Here a failure to send

the message leaves the purchaser without any knowledge of bis purchase.

ferent message from that received; as where an order for goods sent by telegraph, is changed in the delivery, so as to call for a different article or for a larger amount. The duty of the company being of a public nature, it is liable to the party injured in an action on the case for injuries resulting from its carelessness.2

§ 492. Under an agreement between business men that their negotiations shall be carried on by telegraph, each party assumes the risk of the transmission; to a like effect as where the negotiation is carried on by letter. If an offer of sale be made by telegraph and accurately transmitted, it may be accepted by a return telegram. The mode of making the offer invites an acceptance in that manner.

When and to what extent dispatches sent by parties to each other by telegraph are to be treated as written contracts or written evidence of their contracts, must depend upon the circumstances in which they are sent, and the intent and object for which they are transmitted and received. Considering the company a public agent or the agent of both parties, it is quite clear that the message left for transmission is the original, and the message as delivered the copy; and equally clear that the sender cannot enforce the terms of an offer sent by telegraph in any form or sense different from that in which they are delivered. A telegram authorizing a draft on the sender for a given sum, is treated in the hands of the sendee as an unconditional promise in writing to accept the draft-virtual acceptance of it. And a telegram sent to fix some detail or particular in an agreement, previously in negotiation between the parties, does not constitute the contract, so as exclude parol evidence to show the state of the negotiation when the telegram was sent.

§ 493. Whether a telegraphic company is to be regarded as a public or as a private agent, it is liable in damages for the negligent conduct of an operator, in sending false and fraudulent messages; as where he receives from a stranger an authority to draw, purporting to be signed by the cashier of a bank, and transmits it without making proper inquiries in

1 N. Y. & W. Printing Tel. Co. v. Drybrug, 35 Penn. St., 298; Leonard v. N. Y. & C. Tel. Co., 41 N. Y., 544; contra, Playford v. U. K. Tel. Co., Law R., 4 Q. B., 706.

2 Marshall v. York &c. R. R., 11 C. B., 655; Alton v. Midland R. R., 19 C. B. N. S., 213; Fairmount R. R. v. Stutler, 54 Penn. St., 375; Pippin v. Shepherd, 11 Price, 40; Gladwell v. Steggall, 5 Bing. N. C., 733. For the general rule, see Exchange Bank v. Rice, 107 Mass., 37.

3 Trevor v. Wood, 41 Barb., 255; S. C., 36 N. Y., 307.

4 Durkee v. Vt. Central R., 29 Vt., 127; Mattheson v. Roberts, 25 Ill., 591. 5 Johnson v. Clark, 33 N. Y., 216.

6 Beach v. Raritan & Del. Bay R. R. Co., 37 N. Y., 457; citing Potter v. Hopkins, 25 Wend., 417; Renard v. Sampson, 12 N. Y., 566.