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icy requires that such correspondence as transpired between the parties to this suit should be construed in the interests of active trade, and with more or less liberality in favor of a free course of business in dealings of this character. In the case at bar the evidence shows that Hess & Co. did not act upon the rigid letter of Strouse's language. They frequently departed from it.

It is an essential ingredient of estoppel by conduct that the party claiming the benefit of this rule of law must have acted upon the declarations made to him by the defendant. In the leading case of Cornish v. Abington, 4 Hurl. & N. 549, the presiding justice said:

“The rule of estoppel is that, if a party (say the Bonsack Company] uses language which, in the ordinary course of business, and the general sense in which words are understood, conveys a certain meaning, he cannot afterwards say he is not bound, if another [say Hess & Co.), so understanding it, has acted upon it."

The conduct of Hess & Co. throughout their dealings with the Bonsack Company shows that they neither understood the language of Strouse in the rigid sense, nor acted upon it, in soliciting and accepting the different terms of which they were the beneficiaries. We do not think that the Bonsack Company, in a suit by Hess & Co., can be held to a rigid construction of the language which it employed in its letters of the 26th March and 25th April, 1887; Hess & Co. having themselves construed those letters liberally, in frequently requesting better terms for themselves, and receiving advantage of better terms accorded themselves in their own dealings with the Bonsack Company.

Coming now to the particular specifications of breaches of contract relied upon by Hess & Co., we find that their declaration singles out only two instances of such violations, to wit, the contracts with Duke & Sons and with the Lone Jack Company. Both of these contracts stipulated that the price required of the Lone Jack Company and of Duke & Sons, respectively, should be 30 and 33 cents per 1,000, and they stipulated additionally that part of this price-half in one case and a third in the other-should be credited to certain services defined in the contracts which the other parties to them agreed to.render, respectively, in part payment of the regular charge of 30 and 33 cents per 1,000. If these services were real, valuable, and adequate, and if the parties were contracting in good faith, then, ex aequo et bono, in conscience and fair dealing, these contracts did not falsify the statement of Strouse in his letter of April 25, 1887, that his terms of payment were the same to all. Whether or not the services stipulated for in the contract were real, valuable, adequate, and agreed upon bona fide, was a question for the jury. Whether Strouse stated a moral and deceptive falsehood or merely a technical untruth in his letter of the 25łn April, 1887, was also a question for a jury. The averment that these stipulations with the Dukes and the Lone Jack Company were for services not real, not adequate in value, nor made bona fide, and that the statement of Strouse that the royalties paid by these two companies were 30 and 33 cents per 1,000 was false and misleading, was a necessary one in the declaration filed in the suit. The declaration itself put the bona fides of these stipulations and the truth of Strouse's statement directly in issue. Yet the defendant's evidence on neither one of these issues was allowed to go to the jury.

The court below assumed that Strouse's statement was untrue, and refused to allow evidence to be given to the jury on the question of the value of the services and the bona fides of the stipulations relating to them in the contracts. It is needless for us to express any opinion on these two questions put in issue by the pleadings. We are of opinion that they were both questions for the jury, and that the court below erred in refusing to allow the defendant's evidence on them to go to the jury. Let it be observed that in his letters of the 26th March and the 25th April, 1887, Strouse, in detailing with precision the terms on which the Bonsack machines were let to cigarette manufacturers, did not include in his statement of these terms a clause declaring that the royalties specified should invariably be paid in cash. He did not preclude his company from the right, in particular instances, of accepting payment of the royalties, wholly or in part, in property of equivalent value. He virtually reserved that right. If, in a case we shall suppose, the maker of a valuable machine were in the habit of informing his customers that his price, say $100 each, was uniform and the same to all, and yet should accept a winter's supply of coal from one purchaser, worth at market rates $100, and should purchase a horse at $100 from another person to whom he sold a machine, and should allow his dry-goods merchant, whose bill was $100, to take another machine in payment of the debt, and should buy a carriage at $200, and ask a credit on the price of $100, from the carriage maker, in payment for a machine, taken by the latter, we do not think that these transactions would constitute a breach of his guaranty to the public that he charged $100 invariably for all bis machines. We do not think that a suit at law could avail in any court to recover damages under such a guaranty. Yet the case supposed differs little from the two contracts under consideration, Confidence in trade and activity in business would be impaired by construing the guaranty in such a manner. Public policy would forbid so rigid a construction, for such transactions are of just the kind which most promote trade and facilitate business. This important question was one of the issues in the case, -indeed the most prominent one,—and important evidence, directly bearing upon it, was withheld from the jury; that evidence being the depositions of James B. Duke and William H. Butler, and the testimony proffered by defendant of Edmund Schaeffer, president of the Lone Jack ('ompany, and Stewart Walker. We think the court below 'erred in excluding this evidence.

The exceptions taken at the trial by the defendants in the suit below are very numerous, and need not be considered in detail. They relate chiefly to the instructions prayed for respectively by counsel on either side. Those prayed for by counsel for the plaintiffs below were given to the jury, en bloc, by the court. They embody a theory of the case which we think was radically erroneous. They seem to lose sight of the proposition that a plaintiff must

recover on the strength and merits of his own case, and, if these are wanting, cannot recover exclusively on the weakness and demerits of the defendant's case. They virtually put to the jury the question of the defendant's delinquency, and no other. They embodied directions to the jury which excluded from their consideration important evidence which the defendant below offered in their favor. We think the court below erred in granting them in the form in which they were framed. The instructions prayed for by defendant's counsel contained propositions which we think ought to have been presented to the jury in some form or other. Some of the instructions were inadmissible, but we think several of them were proper. It is needless to discuss them in detail. Sufficient has been said to show that the judgment below must be reversed, and the verdict found for the plaintiffs below be set aside.

WESTERN UNION TEL. CO. V. COGGIN et al.

(Circuit Court of Appeals, Eighth Circuit. May 6, 1895.)

No. 510.

TELEGRAPH COMPANIES-LIABILITY FOR NONDELIVERY OF MESSAGE.

One C. made a contract on behalf of himself and his partner, for the purchase of a lot of horses, on which he paid down $250, the balance to be paid on July 24th, or, in default of payment, the $250 to be forfeited. On July 18th C. delivered to defendant's telegraph operator at O. a message addressed to his partner at P., and reading: “Be on hand evening of third. I got early,”-saying to the operator that he wanted his partner to be sure to get the message, as it was a business matter. The message was written on defendant's blank (containing a proviso that defendant should not be liable for the nondelivery of an unrepeated message beyond the sum received for sending it, nor for errors in obscure messages), and was an unrepeated message. c. testified that his purpose in sending the message was to have his partner meet him at W., and bring money to pay for the horses. There was no evidence that his partner would have so understood it, or could or would have complied with the request. The message was not delivered, and C. lost the benefit of the contract. Held, that the defendant was not liable for any damages, since it did not appear that the message would have been understood by the person to whom it was addressed, and there was nothing in it to advise the defendant what it was about, nor what damage would result from its nondelivery. Primrose v. Telegraph Co., 14 Sup. Ct. 1098, 154 U. S. 1, followed.

In Error to the United States Court in the Indian Territory.

This was an action by Thomas J. Coggin and Robert E. Farris against the Western Union Telegraph Company to recover damages for the nondelivery of a message. Plaintiffs recovered a judgment in the circuit court. Defendant brings error. Reversed.

The plaintiffs below, Thomas J. Coggin and Robert E. Farris, were partners in the conditional purchase of a lot of horses. Coggin made the contract. He was to pay $1,500 for the horses. He paid $250, and agreed to pay the remaining $1,250 on the 24th day of July, 1892, and, failing to do so, the trade was to be off, and he was to forfeit the $250 he had paid.

On the 18th day of July, 1892, Coggin wrote upon one of the defendant's printed blanks, and delivered to the operator at Okarche, Oklahoma Territory, for transmission to his partner, Farris, at Purcell, in the Indian Territory, a message reading as follows:

“Okarche, 0. T., 7-18-1892. “To R. E. Farris, c/o E. R. Wilson, Purcell, L. T.: Be on hand evening of third. I got early.

T. G. Coggin." Immediately above and preceding the written message on the blank was printed the following: "Send the following message subject to the above terms, which are hereby agreed to." Among the "above terms" were the following:

"The Western Union Telegraph Company. “All messages taken by this company are subject to the following terms: To guard against mistakes or delays, the sender of a message should order It repeated; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery of or the nondelivery of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery or for nondelivery of any repeated message beyond fifty times the sum received for sending the same, unless specially insured; nor in any case for delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages."

The plaintiffs alleged the defendant negligently failed to deliver the message, and by reason thereof Farris failed to pay the $1,250 on the 24th day of July, 1892, whereby the plaintiffs were damaged in the sum of $1,750, being the $250 forfeited and $1,500 claimed as profits for the difference between the price the plaintiffs were to pay for the horses and what they were worth in the market at the time and place the contract therefor was forfeited. The answer denied all negligence; denied that the defendant at the time of sending the message had any knowledge that it related to the purchase of horses or to any other matter of business in respect to which the plaintiff would suffer any loss or damage by a failure to transmit or deliver the message; and pleaded that the message was a nonrepeated message, and therefore, by the contract between the parties under which it was sent, the defendant was not liable for any mistake in sending or delay in delivering the same. The plaintiff Coggin testified that, at the time he delivered the message to the operator, he told him he "wanted Farris to be sure and get this message, as it was a business matter,” and he says: "My purpose in sending said message was to summon the said Farris to the town of Wolsey, Indian Territory, and to cause him to bring some money to pay the balance of the purchase money on one hundred head of horses and mules that I had purchased from Henry J. Easterwood for myself and the said Farris." The complaint alleged the message read "substantially as follows":

“Okarche, Oklahoma Ty., July 18, 1892. “To Robert E. Farris, c/o S. R. Wilson, Purcell, I. T.: Be on hand the evening of the twenty-third without fail.

Thos. J. Coggin." But the original message was produced, and read as given above.

There were a verdict and judgment for the plaintiff for $330, and the defendant sued out this writ of error.

Cassius M. Ferguson (George H. Fearons, Henry E. Asp, J. iv. Shartel, and James R. Cottingham, on the brief), for plaintiff in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

, ,

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court.

This case was brought and tried before the case of Primrose v. Telegraph Co., 154 U. Š. 1, 14 Sup. Ct. 1098, was decided. Since the decision in that case it has been the settled law in the federal courts -First, that the conditions contained in the stipulation quoted, subject to which the unrepeated message of the plaintiffs was sent, are reasonable and valid; second, that, under these stipulations, the telegraph company is not liable for mistakes in the transmission or delivery, or for the nondelivery, of an unrepeated message beyond the sum received for sending the same; and, third, that where an unrepeated message is in cipher or obscure, and does not on its face inform the telegraph company of the importance or extent of the business transaction to which it relates, and the company is not otherwise advised thereof, the measure of damages for mistakes in its transmission or delivery or for its nondelivery is the sum paid for sending it.

The decision of the supreme court in the case of Primrose v. Telegraph Co. silences further contention on these questions in the federal courts. The judgment below cannot be supported for two reasons:

(1) It does not appear from the evidence that, if Farris had received the message, he would have understood it, or taken any action on account of it, or that anything that was not done would have been done if the message had been received. Coggin testifies to his object in sending the message; but neither he nor Farris nor any other witness testifies that, if Farris had received the message as sent, he would have known what it meant, or that he would have been prompted to take any action on account of it. It is not shown or claimed that it was a cipher message to which Farris had a key, or that there was any previous agreement or understanding between Coggin and Farris as to what meaning should be attached to a message couched in the terms of this one. On its face it does not have the remotest relation to the purchase of the horses. The date mentioned varies nearly a month from the date on which the purchase of the horses was to be concluded. There is no hint as to the place of meeting, or about money, or the completion of any contract for the purchase of horses, or indeed of anything else. There is no evidence that, if Farris had received the message, he would have known what it meant, and attended at the proper time and place, and paid for the horses, or that he had or could have procured the money to pay for them, or that he would have paid for them if he had had the money and had been fully advised of all the facts. In a word, the message is so blindly written as to be absolutely meaningless to any one not having a key to the thoughts of the sender. Under the evidence, the message conveyed no more information to Farris or to the defendant than if it had been in a cipher known to Coggin alone, or in an unknown tongue. It is clear from the evidence that Coggin himself blundered in writing it, and that he failed to use language to express what he intended and what he thought he had written at the time his complaint was drawn.

(2) There is nothing in the message to advise the defendant what it was about, nor what nor where any damage would result from its nondelivery; and particularly there is nothing from which it can properly and reasonably be said the alleged damages grow

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