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graph Co.;1 and it was remarked by the learned Chief Justice that the right of the receiver of an unrepeated message could not, at best, rise higher than that of the sender. If this be true, the question we are now considering is of little importance; for it is probable that the blanks of all the companies contain such stipulations. But is this a sound proposition of law? Is the measure of damages of a third person, injured by the breach of a contract, to be limited to the amount recoverable by the other party to the contract? for this seems to be the force of the objection. The interest of the parties to the contract may be very small; while the injury to the third person may be very great. If the third person have a right of action at all, the value of the contract can be of no importance. Suppose the contract were without consideration, could it be contended that, since the parties could maintain no action for a breach of it, a third person, injured by its improper performance, could not? B. allows A. to pasture his cattle, gratis, in his meadow. The cattle break through the fence into C.'s garden, and are chased out and injured. Cannot C. maintain an action against B. for any damage to his crop? And if A. should pay for the privilege of pasture, would B.'s liability be measured by the sum recoverable by A. for the injury to his cattle?

The recent cases of Henkel v. Pape 2 and Verdin v. Robertson s have decided that under the English Telegraph Act of 1868 telegraph companies cannot be considered as the agents of the sender of an erroneous message. In Henkel v. Pape, Kelly, C. B., said: "The post-office authorities are only agents to transmit messages in the terms in which the senders deliver them. They have no authority to do more." The act above referred to, as has been intimated, did not change in any way the relation of the companies to the- senders or the receivers of messages; it simply provided for the purchase and management of the various lines by the post-office department. It would seem, therefore, that the cases cited are authorities in this country; and an examination of the doctrine of agency leads to the same conclusion.

i 13 Allen, 226. So in Breese v. United States Tel. Co., 48 N. Y. 132. But see True Y. International Tel. Co., 60 Maine, 9, holding such a limitation bad in the absence of a requirement that the dispatch should be repeated in order to make the company liable for mistakes.

a Law R. 6 Ex. 7. » 10 Ct. Sess. Cas. (3d series) 35.

The ground upon which the act of an agent binds his principal (in the absence of express appointment) is this: that the principal has held the agent out to the party dealing with hirn as having authority to bind him, either in the particular transaction, or in the class of transactions to which it belongs. If in point of fact it appear that the party dealing with the agent as such was not authorized by the supposed principal so to treat him, the latter will not be bound. The dealing, in such case, is with the supj^osed agent alone; and it is not material that the agent may have represented that he was acting in the matter for another. But such a misrepresentation would render him liable to the injured party; not, of course, as an agent, but in his individual capacity as a principal.

To apply these propositions to the case of the telegraph comJ>&ny, it would be a violent presumption to say that, by leaving a message with them for transmission, the sender holds them out as authorized to deliver any message which they in good faith may send over their lines. The situation is quite different from that of a recognized case of agency. It might well be doubted, even whether the mere employment of a private messenger, not a servant, to convey a message (this being confessedly his only connection with the sender) could be regarded as authorizing him to deliver any different word from that given, however upright his intentions. But the case of the telegraph company is much stronger. Here is a body of men authorized by statute to transact for the public a business of peculiar character, but little understood by other men; they have asked for and accepted a charter requiring them to perform their duties with care and skill; and they thereby proclaim themselves able and willing to do so.

There is clearly, then, more truth in the view that the telegraph company hold themselves out as principals, than in the notion that the simple act of handing them a message for transmission constitutes them the party's agents. In a certain broad sense they may be considered as agents of the sender; in the same sense that the bullet is the agent of the assassin. But this, we submit, is not the legal idea of the term. An agent in the English law, we conceive to be, like the procurator in the Roman law,1 one who acts with some discretion, or at least purpose, to bind another. Now the telegraph company acts with neither of

1 See Goudsmit on Roman Law, p. 178, note.

these in sending dispatches; with no discretion, for they undertake with the sender to transmit the precise message given them, at all events (barring disturbances beyond their control), regardless of consequences; with no purpose to bind the sender, since this implies knowledge of the immediate object to be effected, and the exercise of volition towards its accomplishment.

If this be correct, it may follow that the telegraph company are not to be regarded as agents of the sender, even when the message is correctly transmitted; and we shall not shrink from such an inference. It is worthy of doubt if the courts do not often use the term " agent " merely as a short cut through a supposed difficulty in connecting persons with each other. The postoffice authorities, for instance, are often said to be the agents of the receiver of a letter; but this is only to overcome the difficulty found in the fact that when a letter is once deposited in the postoffice it is (except by the courtesy of the authorities) placed beyond the control of the sender. And it is suggested, with deference, that it would be better to say so, and thus give the receiver the letter, than to invent a fiction, as useless and misleading as it is false.

But, at all events, the most that can be said is that the sender of a telegraphic message gives the company authority to send a dispatch; and if there is any further representation, that the supposed sender of the same authorized the transmission of the very dispatch delivered, such representation must be considered to be made as well by the company as by the sender; and, if false, the telegraph company, upon the doctrine of implied warranty of authority, are liable to the receiver.1

I Colten v. Wright, 8 El. & B. 647, in Exeh. Ch. We must admit, however, that we are not altogether satisfied with this doctrine. Cockburn, C. J., dissented vigorously, in the case cited, from the notion of an implied warranty in such cases, characterizing it as a new principle in the law. It is clearly opposed to the analogies of the law; for in other cases representations, to be actionable, must be fraudulent as well as false. Now, aside from the matter of the burden of proof, a warranty of this kind is nothing more than a representation of facts, whose materiality cannot be questioned. Besides, a warranty of the existence of a fact in other cases derives force only as it is annexed to a contract or sale. Separate it from its connection and it has no vitality. For example, if I sue for a breach of warranty in the sale of a horse, it is only by affirming the contract of sale that my action is maintainable. See Street v. Dlay, 2 Barn. & Ad. 456. Again, there are many cases of this very same class which are inconsistent with the doctrine. As where an agent contracts for a principal who has deceased, or for a partnership which has been dissolved, without his knowledge, and incurs no liability. See Smout v. Ilbery, 10 M. & W. 1.

It is clear that the telegraph company cannot be considered as the servants of the sender of a message. Not to insist upon the notion that the relation of master and servant implies a power of appointment in the former, and that telegraph companies, being created by the legislature alone, for the public, cannot be made the servants of an individual, it will scarcely be doubted that it is essential to the relation that the master should have complete control for the time over the servant. It was doubtless upon this principle that De Forrest v. Wright,1 and all that class of cases, have been decided. In the case mentioned (which is cited with special approval in Hilliard v. Richardson2}, the plaintiff brought an action for an injury caused by a public licensed drayman while unloading goods for the defendant; the drayman being in his employ at the time. It was held that the action should have been brought against the latter; and the court, upon a review of the authorities, said that the rule was this; that where the person employed is in the exercise of an independent and distinct employment, and not under the immediate control, direction, ox supervision of the employer, the latter is not responsible for the negligence of the former.

But the case of Allen v. Hayward,3 in the language used, is still more in point. The defendants, commissioners of navigation, were sued for defects in a drain made by one Button, a contractor for certain of the work to be done under the authority of the defendants. The court held the action not to be maintainable. In delivering the judgment Lord Denman, C. J., said: "On a careful reference to Laugher v. Pointer,* in which the opinions delivered by Lord Tenterden and Littledale, J., must be taken to lay clown the correct law, ... it seems perfectly clear that in an ordinary case the contractor to do works of this description is not to be considered as a servant, but a person carrying on an independent business, such as the commissioners were fully justified in employing to perform works which they could not execute for themselves, and who was known to all the world as performing them. We find here none of the reasons which have prevailed in cases where one person has been held liable for the acts of another as his servant." 6

l 2 Mich. 368. S 8 Gray, 349, 365.

» 7 Q. B. 960. * 5 B. & C. 547.

5 See Railroad Co. v. Ilannina, 15 Wall. 649; Camp v. Church Wardens, 7 La. An. 321; Painter Y. Pittsburgh, 46 Penn. St. 213. Pothier also says: "Non-seulement la

The conclusion, then, at which we arrive is, that in the transmission of messages telegraph companies act as principals; and their liability for negligent mistakes (and perhaps delays) arises either on the ground of a misrepresentation of agency, or, certainly, on the principle that a person must so conduct his business as not to injure others.

We have suggested that it is possible that in Playford v. The United Kingdom Telegraph Co. the court may have thought this second ground inapplicable to the case, and the first may not have been suggested. But no reason occurs why the doctrine of the second proposition should not apply.1 It does not affect one's duties to thud persons that he is bound to another by contract, or that he has broken the same, and rendered himself liable to the contractor. Rather, by adding another right against third persons, — that of requiring non-interference in the performance of the contract, — the contract adds, reciprocally, another duty to them, — that of a proper regard for their rights in its execution; or, more definitely, that of refraining from action which would have a direct tendency (i. e., a tendency which might be foreseen) to produce a particular injury. Now the telegraph is only resorted to in cases of importance and urgency, so that the very fact of presenting a message for transmission indicates that it concerns a matter of importance. The company cannot, therefore, fail to know that a mistake in transmission will be likely to produce damage to the receiver, by causing him to do that which otherwise he would not do. Knowing, then, the probably evil consequences of transmitting an erroneous message, they owe a duty to the receiver of refraining from such an act; and if (by negligence) they violate this duty, they must, on plain legal principles, be liable for the damage produced. It may be added that the public nature of the duties owed by telegraph companies is sufficient to distinguish the position from that of Winterbottom v. Wright2 and Collis v. Selden,s if those cases be sound law.

M. M. B.

personne qui a commis le dclit on quasi-delit est obligee a la reparation du tort qu'elle a cause'; celles qui ont sous leur puissance cette personne, telles que sont lcs peres, meres, tuteurs, prccepteurs, sont tenues de cette obligation, lorsque le de'lit ou quasidelit a e'te commis en leur presence, et generalement lorsque pouvant l'empeuher, ellea ne l'ont pas fait. Mais si elles n'ont pu I'empecher, elles n'en sont point tenues." Obligations, § 121.

1 See Ellis v. American Tel. Co., 13 Allen, 226, 234, where the doctrine is held applicable to this case, though without giving the reasons.

» 10 M. & W. 109. "LE.3C. P. 495, Bovill, C. J.

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