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sion — is not so free from difficulty. In this country there is great unanimity in holding the companies liable. In England the contrary is held.2
In the New York f Washington Telegraph Co. v. Dryburg, generally cited as the leading American case, one LeRoy transmitted to the plaintiff, by the defendants' line of telegraph, an order for a number of “ hand bouquets.” The operator, reading “hund” for “ hand,” supposed that the word had been abbreviated for “ hundred,” and transmitted the message accordingly. The plaintiff acted upon the message as delivered, and, upon learning of the mistake, brought an action against the telegraph company to recover for the loss incurred. The action, as has been stated, was sustained, two grounds being given: first, that, being servants of the public, the defendants were to be regarded as agents of the plaintiff as well as of LeRoy, the sender of the dispatch ; secondly, that, being agents of LeRoy at all events, they were liable to third persons for their misfeasances, and that the alteration of the message by the operator, though made in good faith as it appears, was an act of that character, imputable to the company. “If the handwriting,” say the court further, " was so bad that he [the operator] could not read it correctly, he should not have undertaken to transmit it; but the business of transmission assumed, it was very plainly his duty to send what was written.”
In Bowen v. Lake Erie Telegraph Co.,3 a similar case at Nisi Prius, the court charged the jury that telegraph companies, holding themselves out to transmit dispatches correctly, are under obligation to do so, unless prevented by causes over which they have no control.
In De Rutte v. New York, Albany, &c., Telegraph Co., 4 in the Common Pleas of New York city, the plaintiff's agent in Bordeaux prepared a telegram and sent it in a letter to a house in New York, with instructions to send it in the quickest manner to the plaintiff at San Francisco. The New York house gave the message to the defendants, and paid the full cost of transmission to California. On reaching its destination, the message contained several errors, some of which were apparent, but one of which misled the plaintiff, and caused the loss for which the suit was brought. The court held that the case was not changed by reason of the fact that the dispatch passed over several lines, and that it was not an act of negligence on the part of the plaintiff that he had acted upon the dispatch (while knowing that it contained errors) without having it repeated ; and the plaintiff was allowed to recover. One objection taken by the defendants was this : that they had entered into no contract with the plaintiff concerning the message. But the court replied that it did not necessarily follow that the contract was made with the person sending the message. He might have no interest in the subject-matter of it. The party to whom it is addressed may be the only one interested in its correct transmission ; and when that is the case, he is the one with whom in reality the contract is made. It was further said, that the case was somewhat analogous to that of a loss of goods by a carrier, as to which the rule of law is, that the right of action against the carrier is in the consignee. But the defendants were also liable, the court held, regardless of this matter of contract, on the ground that they had put the plaintiff to a loss by their negligence.
i New York f. Washington Tel. Co. v. Dryburg, 35 Penn. St. 298; Bowen v. Lake Erie Tel. Co., 1 Am. Law Reg. 685; De Rutte v. New York, Albany, 8c., Tel. Co., 1 Daly, 647; Rose v. United States Tel. Co., 3 Abb. Pr. N. 8. 408; Elwood v. Western Union Tel. Co., 45 N. Y. 549; Ellis v. Am. Tel. Co., 13 Allen, 226.
9 Playford v. United Kingdom Tel. Co., Law R. 4 Q. B. 706; 10 B. & S. 759. 3 1 Am. Law Reg. 685.
* 1 Daly, 547.
Opposed to these American cases stands the case of Playford v. United Kingdom Telegraph Co., in the Queen's Bench of England. The court there held an action not maintainable by the receiver of an unrepeated message, on the ground that the obligation of the company to use due care and skill in the transmission of messages arises entirely out of contract; that the act of Parliament had not affected the relation of the company to the sender or the receiver of a dispatch; and that the contract having been made with the sender of the message, the plaintiff had no right of action against the company for a breach of their undertaking.
It may not be difficult to dispose of the leading ground of the company's liability taken in De Rutte v. New York, Albany, fc.,
T. Jegraph Co.; that the contract for the proper transmission of the message being in reality for the benefit of the receiver, he had
a right of action for the admitted breach. The reply to this position is to be found in the rule established in the very important case of the Exchange Bank v. Rice.1 “ The general rule of law," says Mr. Justice Gray, in delivering the judgment of the court, “ is, that a person who is not a party to a simple contract, and from whom no consideration moves, cannot sue on the contract, and consequently that a promise made by one person to another for the benefit of a third person who is a stranger to the consideration, will not support an action by the latter.” The court herein overrule certain unguarded expressions in Carnegie v. Morrison, and in Brewer v. Dyer,; and bring the law back to a more secure anchorage. Nor does De Rutte v. New York, Albany, fc., Telegraph Co. come within any of the exceptions to this rule, unless (upon the supposition that the transmission of a message is, or is analogous to, a bailment of goods, as has sometimes been supposed 4) it is embraced within the first and most important exception. This includes cases where the defendant, receiving money or property from another, which in equity and good conscience belongs to the plaintiff, promises the party from whom he receives it to account for it to the plaintiff. Now, any supposed analogy between such a case and that of the receipt of a telegraphic message, with a promise to deliver to the plaintiff, as has often been pointed out, will not bear examination. It is doubtful even if a letter to be delivered under similar circumstances would come within the exception ; for a letter can hardly be considered as property, and the tendency of the courts is to narrow, and not to extend, the rule on this point. But however this may be, it is almost useless to say that a telegraphic company does not undertake to transmit, physically, the piece of paper received, or to account for it as property ; the agreement is simply to use due care and skill to translate the writing into telegraphy, to send the proper symbols over the line, and then to retranslate and deliver the message. This is any thing but a receipt of money or property upon a promise to pay it to the plaintiff.
1 107 Mass. 37.
2 2 Met. 381.
37 Cush. 337. 4 Scott & Jarnagin, Telegraphs, $$ 95, 97; Parks v. Alta Californian Tel. Co., 13 Cal. 422; Leonard v. New York, Albany, fc., Tel. Co., 41 N. Y. 544; True v. International Tel. Co., 60 Maine, 9.
5 See Western Union Tel. Co. v. Carew, 15 Mich. 525, 533; Playford v. United Kingdom Tel. Co., Law R. 4 Q. B. 706, 710; Breese v. United States Tel. Co., 48 N. Y.
In the New York f Washington Telegraph Co. v. Dryburg, the Supreme Court, as has been observed, took the position that the company were to be regarded as the agents of the sender of the message; and they were held liable as such, on the ground that they had been guilty of a misfeasance. In Playford v. United Kingdom Telegraph Co. it does not clearly appear whether the defendants were regarded as agents or as principals.
Now we conceive that the Pennsylvania case cannot be sustained if the ground taken, that the company are agents of the sender, be correct; and that the English case cannot be upheld if the company act as principals in transmitting their messages.
The “misfeasance” for which the company were held liable in Pennsylvania consisted in, apparently innocently, changing “hund” to “hundred.” Laying aside the obvious suggestion that to call this a misfeasance is an unwarranted use of the term, it is sufficient to call attention to the familiar principle of agency, that an agent, while executing his trust bonâ fide, is not liable to third persons for his unskilfulness or negligence. It is only when he throws off his character as agent, and acts for himself, — wilfully, to use the common term, — that he subjects himself to an action. Now the jury, in the Pennsylvania case, having merely found that the company had been negligent in transmitting the message, it is difficult to see how they could have been held liable as agents. The plaintiff's declaration did not charge them with any wilful misconduct; the allegation was that the dispatch had been sent“ erroneously, untruly, and carelessly.”
Mr. Justice Sharswoed, in the court below, feeling this difficulty, repudiated the ground taken in the appellate court, and adjudged the defendants liable as principals. And this was doubtless the view taken in Bowen v. Lake Erie Telegraph Co., 2 and in other American cases.3
If this be the true character of the telegraph company in transmitting messages, the defendants in this case were properly held liable for the mistake of their operator; for they had been found guilty of negligence. But if the company are to be regarded
I Lane v. Cotton, 12 Mod. 472, 488 (Lord Holt); Railroad Co. v. Hanning, 15 Wall. 649; Story on Agency, $ 308 et seq.
2 1 Am. Law Reg. 685; supra, p. 460.
as principals, there is difficulty with the decision of the English case, since that case can then be sustained only on the ground that there was no negligence on the part of the defendants. But the facts will not bear this out. The case (which was stated to the court with liberty to draw inferences of fact) was quite as strong as that of the New York & Washington Telegraph Co. v. Dryburg. The figures “ 23 ” had been read “ 27" by the operator, and the message transmitted accordingly. And it seems to have been admitted this was a case of negligence on the part of the company. Or, rather, it seems to have been assumed that though this were negligence, no action could be maintained against the defendants. At an earlier stage of the trial, before the case had been stated, Cockburn, C. J., referring to the argument that, as the act of Parliament had imposed the duty of transmitting messages for all persons upon the defendants, there must be a right of action in favor of any one who had suffered through their negligence, replied : “But that is not so. For, although it is true that the act has imposed a duty upon the company to transmit these messages, it can only operate for the benefit of those who are entitled to have messages sent.” Now, as the statute had not abridged the liability of telegraph companies to third persons, it follows that their position at best was not superior to that of persons in the ordinary situation of citizens. And that citizens, as such, must so conduct their business as not to injure others is a principle too well settled to need the citation of authority; and from this proposition the doctrine, quite as firmly rooted, follows, that citizens, as such, are liable for damage caused by their negligence. With so obvious a doctrine before the mind of the court, it must have been assumed either that the defendants were not acting for themselves in the transaction in question, but in some sense as under the authority of the sender of the message, or else that the principle stated did not apply to the case in controversy.
Before proceeding to consider the real nature of the relation of the telegraph company to the sender of a message, another point should be noticed. In most, if not all, of the cases to which we have referred, the telegraph company had limited their liability for mistakes (above the sum paid for the message) to cases in which the dispatch had been repeated by the receiver. Such a limitation was held reasonable in Ellis v. American Tele