W. U. Tel. Co., 11 Neb. 87. Evidence of a local usage in the telegraph office is inadmissible to vary the terms of the contract by which the message was sent: Grinnell v. W. U. Tel. Co., 113 Mass. 299. Nor is evidence admissible that the company made a deduction from the pay of the operator on account of the negligence: Grinnell v. W. U. T. Co., 113 Mass. 299.

Telegrams are often used as evidence of contracts between the sender and the receiver. The party who sends an order by telegraph makes the telegraph company his agent to transmit and deliver it. He is bound by the message as delivered: Dunning v. Roberts, 35 Barb. 463; and where the legal rights of the receiver founded upon such order are in question, he is entitled to put in evidence the message actually received, as the original: Saveland v. Green, 40 Wis. 431. See, also, Taylor v. Steamboat R. Co., 20 Mo. 254; Commonwealth v. Jeffries, 7 Allen 548. But a dispatch offered in evidence must be proved to be authentic (Richie v. Bass, 15 La. Ann. 668) either by proof of the operator's handwriting or otherwise. But a wife's telegrams cannot be used against her husband: Benford v. Sanner, 40 Penn. St. 9.

A telegraph company may be required to produce telegrams for use as evidence upon subpœna duces tecum, and this notwithstanding a statute making it a misdemeanor for any person employed in transmitting messages by telegraph to make known the contents of any message to any person except to him to whom it is addressed, or to his agent or attorney: Woods v. Miller, 55 Ia. 168. And see Ex parte Brown, 7 Mo. App. 484. Nor can the manager of a telegraph company refuse to produce a telegram, upon order so to do by a court, on the ground that, by so doing, he would violate his duty to the company, and he is punishable for contempt if he refuse: Ex parte Brown, 7 Mo. App. 484. But while an agent of a

company is punishable for contempt in refusing to produce messages in possession of the company before a grand jury, on proper process, a subpœna duces tecum merely describing such messages by the names of the senders and the persons addressed and as sent "within fifteen months last past," is not such process: Ex parte Brown, 72 Mo. 63; 37 Am. Rep. 426. See, also, Ex parte Brown, 7 Mo. App. 484.

DAMAGES.-The general rule is that a party injured by error, delay, or failure, by negligence, in transmitting and delivering a telegram, is entitled to recover all his damages, including gains prevented as well as losses sustained. This rule is subject to two qualifications: The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract; that is, such as might naturally be expected to follow its violation, and they must be certain: Lundsbeger v. Am. Tel. Co., 32 Barb. 533; Griffin v. Colver, 16 N. Y. 489; Baldwin v. U. S. Tel. Co., 1 Lans. 125.

Instances of the application of the rule that a telegraph company is not liable for all damages which may arise from its negligence in sending and delivering a message, the importance of which it is not informed and cannot estimate from reading the dispatch, are these: Where the dispatch is in cipher, or obscurely worded, nominal damages only are recoverable, unless the company has been informed of its nature: Candee v. W. U. Tel. Co., 34 Wis. 471; Behm v. W. U. Tel. Co., 8 Biss. 131; W. U. Tel. Co. v. Martin, 9 Bradw. 596; Baldwin v. U. S. Tel. Co., 45 N. Y. 744; White v. W. U. Tel. Co., 14 Fed. R. 710; Mackay v. W. U. Tel. Co., 16 Nev. 222. Thus, the company was held not liable where the message was "Sell fifty (50) gold," not having been told that this meant "Sell $50,000 of gold :" U. S. Tel. Co. v. Gildersleve, 29 Md. 233. The fact that the employees to

whom the message was delivered knew the sender was a stock operator, and that he informed the boy in the office that the dispatch required promptness, is not sufficient information of its nature: Candee v. W. U. Tel. Co., 34 Wis. 471. So, where A. wrote B.: "Have you any more northwestern mess pork, or prime mess? Also extra mess? Telegraph price on receipt of this." B. replied by wire thus: "Letter received. No light mess here. Extra mess twentycight seventy-five ($28.75)." And A. rejoined by telegraph: "Dispatch received. Will take two hundred extra mess, price named," which dispatch was delayed. Held, that A. could not recover damages occasioned by an advance in the meat during the delay: Beaupre v. P. & A. Tel. Co., 21 Minn. 155. Nor will a telegraph company be liable for delaying a cipher dispatch, although the telegraph manager knew such dispatches ordinarily related to mining and stock speculations, there being no explanation of the importance of the particular dispatch in question: Mackay v. W. U. Tel. Co., 16 Nev. 222. message, "Will you give one fifty for twenty-five hundred at London ? Answer at once, as I have only till night," is not obscure or in cipher so as to fall within the meaning of a stipulation that the company "assumed no liability for errors in cipher or obscure messages:" Telegraph Co. v. Griswold, 37 Ohio St.

301.

But a

The measure of damages has also been passed upon in the following cases:

Dispatch: "Can close Valkyria and Othere, 22, 20, net Montreal. Ans. immediately." Held, that the commissions which the sender could have earned as a broker in effecting a charter for the two vessels named Valkyria and Othere, if the message had been duly transmitted, were not damages either actually contemplated or fairly supposed to have been contemplated by defendant, and, therefore, not recoverable: McCall v. VOL. XXXIII.-43

W. U. Tel. Co., 44 N. Y. Superior Ct. 487; 7 Abb. N. Cas. 151.

A telegraphic order for sacks of salt was transmitted casks. The casks were shipped and had to be sold at below the market price at the place of shipment. Held, that the difference between such market price and the selling price, totogether with the expense of transportation, was not an improper measure of damages: Burton v. Tel. Co., 41 N. Y. 545.

For delaying a dispatch ordering an attachment until other creditors obtained attachments exhausting the assets of the debtor, the amount of the sender's claim bas been held recoverable (Parks v. Alta Tel. Co., 13 Cal. 422), less any sum which the sender may have received on account of his debt: Bryant v. Am. Tel. Co., 1 Daly 576.

Where an incorrect telegraphic market report induced A. to buy, he was held entitled to the difference between the actual purchase price and that stated in the report: Turner v. Hawkeye Tel. Co., 41 Ia. 458. An advance in the price of stock ordered has been held to be the measure of damages: U. S. Tel. Co. v. Wenger, 55 Penn. St. 262.

On failure to deliver promptly a message to "ship oil soon possible," the profits which might have been made on the oil if the message had been delivered and the oil sent in due time, are not the measure of damages, but plaintiff may recover the money paid by him for transmitting the message, the advance in freight, and his expenses incurred by failure of defendant to fulfil the contract: W. U. Tel. Co. v. Graham, 1 Col. T. 230.

Where a message to "buy five Hudson" was delivered as "buy five hundred," and before it could be corrected an advance occurred by which sender lost $1375, this sum was held to be the measure of damages: Rittenhouse v. 1. L. Tel. Co., 44 N. Y. 263.

If a telegraph company contract to

transmit without any special restriction of their liability a message accepting an offer to sell certain goods at a certain place for a certain price, and by their negligence in delivering it the sender fails to complete the purchase, he may recover from them, in damages, the difference between the price which, by the message, he agreed to pay, and the price he would have been compelled to pay at the same place in order, with use of due diligence, to have purchased goods there of the same kind, quality and quantity: Squire et al. v. W. U. Tel. Co., 98 Mass. 232. See, also, True v. 1. Tel. Co., 60 Me. 9.

Damages for failure to obtain employment as a pilot have been held not remote or speculative: W. U. Tel. Co. v. Fenton, 52 Ind. 1; and in any case of telegraphic negligence nominal damages are recoverable, although actual damages be not proved: First Nat. Bk. ▼. Tel. Co., 30 Ohio St. 555; and, indeed, damages need not be proved; where a case of negligence is made out, they will be presumed: Western Union Telegraph Co. v. Buchanan, 35 Ind.

430.

The California and Massachusetts cases placed at the head of this note are opposed to each other in their rulings as to the right of a telegraph company to release itself by contract from liability for negligence. Without attempting to reconcile this conflict of authority, which, perhaps, is impossible, it may be well to call attention to the decisions sustaining the views expressed in each of the cases.

The general rule is undoubtedly the same in the case of telegraph companies as with carriers. They cannot, by contract, relieve themselves from liability for negligence. In affirming this rule the California cases are sustained by the following decisions: Tyler v. W. U. Tel. Co., 60 Ill. 421; Sweatland v. S. & M. Tel. Co., 27 Ia. 432; Manville v. W. U. Tel. Co., 37 Id. 214;

True v. Int. S. Co., 60 Me. 9; Bartlett v. W. U. Tel. Co., 62 Id. 209; W. U. Tel. Co. v. Graham, 1 Cal. 230; Tel. Co. v. Griswold, 37 Ohio St. 301; Hibbard v. W. U. Tel. Co., 33 Wis. 558; Candee v. W. U. Tel. Co., 34 Id. 471; W. U. Tel. Co. v. Fontaine, 58 Ga. 433; W. U. Tel. Co. v. Blanchard, 68 Id. 299; W. U. Tel. Co. v. Shotter, 18 Cent. Law Jour. 230 (Georgia 1884); Dorgan v. Tel. Co., 1 Am. L. T. Rep. (N. S.) 406 (C. C., S. D. Ala. 1884); W. U. Tel. Co. v. Neill, 57 Tex. 283; W. U. Tel. Co. v. Brown, 58 Id. 170; Womack v. W. U. Tel. Co., Id. 176; W. U. Tel. Co. v. Catchpole, Tex. Ct. App., Civ. Cas.; White & Wilson, sect. 268; Camp v. W. U. Tel. Co., 1 Metc. (Ky.) 164; Passmore v. W. U. Tel. Co., 78 Penn. 238; W. U. Tel. Co. v. Reynolds, 77 Va. 173; Hord v. W. U. Tel. Co., (Super. Ct. Cin., G. T. 1878), 6 Am. L. Rec. 529; Bell v. Dom. L. Co. (Super. Ct. Montreal 1880), 25 L. C. Jur. 248; W. U. Tel. Co. v. Fenton, 52 Ind. 1; Aiken v. W. U. Tel. Co., 5 S. C. 358, 372; Express Co. v. Calawell, 21 Wall. 264, 269; Pinckney v. W. U. Tel. Co., 19 S. C. 71, 73.

But see, Grinnell v. W. U. Tel. Co., 113 Mass. 299; Redpath v. W. U. Tel. Co., 112 Id. 71; Ellis v. Am. Tel. Co., 13 Allen 226; Clement v. W. U. Tel. Co., 137 Mass.; Becker v. W. U. Tel. Co., 11 Neb. 87; Breese ▾. U. S. Tel. Co., 48 N. Y. 132, per EARL, Com.; Schwartz v. A. & P. Tel. Co., 18 Hun 157; White v. W. U. Tel. Co., 5 McCrary 103; Jones v. W. U. Tel. Co., 18 Fed. Rep. 717; Macandrew v. El. Tel. Co., 17 C. B. 3; Potts v. El. S. Co., 18 Law Rep. 477; Wann v. W. U. Tel. Co., 37 Mo. 472; Lassiter v. W. U. Tel. Co., 18 Fed. Rep. 90.

But it appears that in Massachusetts, Nebraska and Missouri, telegraph companies may contract against liability for negligence, although a railroad company

may not do so. Compare Schall District in Medfield v. B. H. & E. Rd. Co., 102 Mass. 552, with Grinnell v. W. U. Tel. Co., 113 Id. 299, 306; Redpath v. W. U. Tel. Co., 112 Id. 71; Ellis v. Am. Tel. Co., 13 Allen 226. Compare also, Kirby v. Adams Ex. Co., 2 Mo. App. 369; and Drew v. Red Line Transit Co., 3 Mo. App. 495, with Wann v. W. U. Tel. Co., 37 Mo. 472. Compare, also, A. & N. R. Co. v. Washburn, 5 Neb. 117, with Becker v. W. U. Tel. Co., 11 Id. 87.

The weight of authority is therefore in favor of denying the validity of contracts against liability for the telegraph company's negligence.

The decision of the California case is, however, opposed to the weight of authority in ruling upon the liability of the telegraph company for damages resulting from errors in transmitting cipher dispatches. "It is true, that in two or three early cases, the doctrine has been advanced that a telegraph company is liable to its employer for the actual and proximate loss that he sustained through the breach of a contract to communicate a message intelligible to the person addressed, although the com

pany was entirely ignorant when it made the contract of the meaning of the message:" Gray on Tel. Communication, sect. 87, citing Strasburger v. W. U. Tel. Co. (Super. Ct. N. Y. 1867), Allen's Tel. Cas. 661; Rittenhouse v. Ind. Line of Tel., 1 Daly 474; B. c. 44 N. Y. 263; Bowen v. L. E. Tel. Co. (Com. Pl. Ohio), 1 Am. Law Reg. 685. Sce, also, Dougherty v. Am. Tel. Co. (S. C. Ala. 1884), 18 Cent. L. J. 428. But the general rule is that the damages recoverable for the breach of a contract to communicate a message of this description are simply nominal: Idem. Citing Candee v. W. U. Tel. Co., 34 Wis. 471; Mackey v. W. U. Tel. Co., 16 Nev. 222; Dorgan v. Tel. Co. (C. C., S. D. Ala. 1874), 1 Am. L. T. Rep. (N. S.) 406; Daniel v. W. U. Tel. Co., 61 Tex. 452; Sandurs v. Stuart, 1 C. P. Div. 326; 15 Chi. Leg. News 220; W. U. Tel. Co. v. Reynolds, 77 Va. 173; Dougherty v. Am. Tel. Co., 18 Cent. L. J. 428; Pinckney v. W. U. Tel. Co., 19 S. C. 71, 74. See supra, Damages. Also, 23 Am. L. Reg. (N. S.)

281.

ADELBERT HAMILTON.

Chicago.

W. G. Roelker, for defendant.