panies may in good faith determine for them- , zone, they could not compel appellee to give selves the limits within which they will them telephone service, and for that reason carry on their business. 37 Cyc. 1653; Cum- could not recover the penalties denounced by berland Tel., etc., Co. v. Kelly, 160 Fed. 316, the statute. At most, they could have only 87 C. C. A. 268, 15 Ann. Cas. 1210; Delaware sued appellee for damages for breach of con& A. Telegraph & Telephone Co. v. State of tract; and we do not decide whether they Delaware ex rel. Postal Tel. & Cable Co., 50 could have even maintained such action, for Fed. 677, 2 C. C. A. 1.

it might be said that, having moved away [3] According to the allegations of the an- from their former residence in the country, swer, appellee owned and operated a tele- they placed themselves in a position where phone exchange in the city of Prescott, and they could not use the party line which they this included the thickly populated territory had contracted for, and on this account there adjacent to the corporate limits. Within the would be no breach of contract on the part limits which it established, under the stat- of appellee. ute, appellee was required to give the same The court did not err in refusing to perservice, on the same terms, to all who applied mit appellants to introduce the contract therefor, without partiality or unreasonable above referred to in evidence; and, even discrimination. It could not be required to if it had been admitted in evidence, under extend its line or service beyond the limits the views we have expressed, the result which it had established. The act of appellee would have been the same. Therefore the in making the contract of March 1, 1912, judgment will be affirmed. with appellants and others, whereby it agreed to furnish them telephone service on a party line, was a mere privilege which it might grant to them, but it could not have

WESTERN UNION TELEGRAPEI CO. v. been compelled to have executed such a con

WESTBROOK. tract. This, we think, is clear from the principles decided in the cases cited above,

Dec. 1, 1913.)

(Supreme Court of Arkansas. and it was expressly so decided in the case 1. TELEGRAPHS AND TELEPHONES (8 37*)-DE

LIVERY-WHAT CONSTITUTES. of Younts v. Southwestern Tel. & Tel. Co. (C.

A message addressed to two persons jointly C.) 196 Fed. 200. See, also, Crouch v. Arnett, may be delivered to either, and a delivery to 71 Kan. 49, 79 Pac. 1086.

one is a delivery to the other. As long as appellants lived in the country, and Telephones, Cent. Dig. $$ 23, 24, 29, 30,

[Ed. Note.-For other cases, see Telegraphs they had a right to telephone service over 32; Dec. Dig. Š 37.*] the party line during the life of their con- 2. TELEGRAPHS AND TELEPHONES ($ 38*) DE: tract with the telephone company; but the

LIVERY OF MESSAGES-FREE DELIVERY LINpresent suit is not based on contract, but was instituted to recover penalties imposed A person living a mile and a half from a by section 7948 of Kirby's Digest, for unlaw- town having a population of less than 5,000 is

beyond the free delivery limits of a telegraph ful discrimination. When appellants moved company establishing free delivery limits with: from their residence in the country, outside in a radius of half a mile from its office, and of appellee's telephone zone, into their resi- a delivery of a message by promptly placing it dence in the suburbs of the city of Prescott, sufficient where the company has no authority

in the post office, addressed to the addressee, is they brought themselves within the limits from the sender to incur special delivery exestablished by the telephone company for penses. maintaining and operating its telephone ex

[Ed. Note.-For other cases, see Telegraphs change. All persons who comply with the

and Telephones, Cent. Dig. § 33; Dec. Dig. §

38.*] reasonable rules of a telephone company, 3. TELEGRAPHS AND TELEPHONES (8 38*)-DEand who come within the same class, are

LIVERY OF MESSAGES-FREE DELIVERY LIMentitled to telephone service within the established limits of the telephone company;

Where the addressee of a message resided and it is for discrimination against such per- looked around the town to find some one by

beyond free delivery limits, and the messenger sons that the penalties of the statute are di- whom be could send the message to the addressee rected. When appellants moved into the and, failing to find any one, deposited it in the limits established by appellee for conducting post office after advising the postmaster of its its business, they brought themselves within delivery, the company was, as a matter of law,

presence and contents and requesting a prompt the class whom appellee was bound to serve not guilty of any breach of duty in failing to without partiality or unreasonable discrim- deliver the message; the sender conferring no ination, if proper application was made authority for special delivery expenses.

[Ed. Note.-For other cases, see Telegraphs therefor. Appellants do not show that they and Telephones, Cent. Dig. $ 33; Dec. Dig. $ applied for telephone service upon the same 38.*] terms as those who live within the estab- 4. TELEGRAPHS AND TELEPHONES ($ 38*) lished limits, but they demanded service un DELIVERY OF MESSAGES — FREE DELIVERY der the contract they had made with appel


Where the operator at the destination of lee while they lived in the country. When

a message advised the operator at the initial they lived outside of appellee's telephone point of the fact that the addressee resided be



*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


yond free delivery limits, and the sender, on be- , read as follows: "Bert dying. Answer coling informed of the facts, expressed satisfac-lect." The third telegram, which has been tion with the mailing of the message, the company was without authority to incur special set out in full, was addressed to John and delivery expenses and as a matter of law was Rosa Westbrook and advised them of the not guilty of any breach of duty, notwithstand death and day of the interment unless ining its rule providing for special messenger structions to the contrary were received. service on the sender guaranteeing the delivery That telegram was dated 4:30 p. m. of the charges.

(Ed. Note. For other cases, see Telegraphs 5th. A fourth and last telegram was sent and Telephones, Cent Dig. & 33; Dec. Dig. 8 by Everett on the 6th acknowledging the re

ceipt of a telegram sent to him by John West

brook in regard to the funeral arrangements. Appeal from Circuit Court, White County; The complaint sets out the first and third Eugene Lankford, Judge.

telegrams and makes no mention of the secAction by Rosa Westbrook against the ond, although appellee denied receiving any Western Union Telegraph Company. From a of them. judgment for plaintiff, defendant appeals.

The evidence in the case was substantially Reversed, and cause dismissed.

as follows: Appellee alleged in her complaint: That One Armspaugh testified that he was the appellant was a corporation, operating a line appellee's father and that she was living with - of telegraph from Saltillo, Tex., to Beebe, him during the month of January, 1912, and

Ark., and that on January 4, 1912, one Wal- had been for some time prior thereto, and ter Everett delivered to the defendant com- that he was well known in and around Beebe, pany at Saltillo a message directed to her and that he got the telegram addressed to at Beebe, advising her that her husband, who Mrs. Westbrook out of the post office on the was then at Saltillo, was very ill, and that morning of January 6th, between 8 and 9 on the next day the said Everett delivered o'clock, and that the envelope showed that another message to the defendant directed it had been mailed at

P. m., Januto appellee in the following words: "Bert died ary 4, 1912, and the first they had ever heard to-day. Interment here tomorrow unless you of any of the telegrams was on the night of advise to the contrary.” That the said Ever-the 5th, when they were advised by a negro ett paid the customary price for the trans- named Love of the first telegram and its

mission and delivery of said messages to the contents. Witness lived three-quarters of si appellant, but they were not delivered with a mile beyond the corporate limits of the - in a reasonable time or within any other town of Beebe and something more than a

time. That her husband died on the 5th of mile from the telegraph office. January, 1912, and was buried without her Appellee testified that she only received knowledge of even his serious illness. That, the telegrams herein designated as the first if the telegram had been properly transmit- and third, and that the first telegram was ted to her, she could and would have at delivered to her on the morning of the 6th, tended her husband in his last illness and and the other during the afternoon of that have brought his remains to her home at day. She testified that had she received Beebe, where she could have attended his these telegrams she could and would have uneral. She alleged that, because of appel- gone to her husband. And there is some

ant's negligence in failing to transmit and evidence, in addition to her own, which per leliver the message, she suffered great grief makes it appear not impossible, although ind mental anguish and prayed judgment in highly improbable, that she might have he sum of $2,999. The answer denied all reached her husband before the time of his legligence but admited receipt of the mes-death, which was shown to have occurred at

ages, and alleged they were promptly trans- 3:30 p. m. on the 5th, had the first telegram $- nitted and that appellant was guilty of no been delivered immediately after its receipt

legligence in their delivery, and alleged fur- in Beebe; but she could have reached Saltber that appellee could not have reached her illo before his funeral, which occurred on the usband before his death, but that the mes- 6th. ages were delivered in time for her to have John Westbrook, who was one of the adiven directions about his funeral and to dressees in the second and third messages, tesave attended it at Saltillo, or to have made tified at first that he received both of those rrangements for it at Beebe.

messages during the afternoon of the 6th There appears to have been no controversy and that on the 7th he sent a message to s to what happened at Saltillo. Mr. Everett Mr. Everett saying: “Bury Bert nicely; I ant four messages, the first of which was will pay expenses.” But upon cross-examinaated 3:30 p. m. of January 4, 1912, and was tion admitted that he had in fact received Idressed to appellee individually and read both messages about 5 p. m. on the evening 13 follows: "Bert Westbrook seriously ill. of the 5th, although he still contended he nswer." A second telegram was sent at had gotten them on that date through the 47 p. m. on the 5th and was addressed to post office and not from the telegraph opobn and Rosa Westbrook, Beebe, Ark., and erator.

for other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The evidence upon the part of the appel The operator at Saltillo testified that, after lant was to the following effect:

receiving the message from the operator at Garrison, the operator at Beebe, testified Beebe advising him of the nondelivery of the that upon receipt of the message addressed telegrams and stating the reasons therefor, to Mrs. Rosa Westbrook individually, which he immediately called Mr. Everett, the sender was received at his office in connection with of the telegrams, over the phone and told one addressed to John Westbrook individu- him what had been done, and that Mr. Everally, he went to the store of a man named ett had said that it was satisfactory to him John Westbrook and gave him the telegram to bave the telegrams mailed, and there was bearidg that address and, upon its being torn no request to have them delivered in the open and read, Westbrook advised him who country nor offer made to pay the charges the addressees were. Thereupon the opera- for doing so. He testified further that, when tor went to his office and inclosed the tele- the messages addressed to John and Rosa gram in an envelope addressed to appellee Westbrook jointly were sent by him, he adand gave it to his porter with directions to vised the operator at Beebe the expense of make inquiry about town for the addressees their delivery would be guaranteed, but he and to deliver if he could, or send the tele. was almost immediately notified by the oper. gram to her if he saw an opportunity to do ator at Beebe that there would be no charge so, and, if not, to mail the telegram at the for delivery as the messages had been de post office. The witness wired the operator livered directly upon their receipt. The tele at Saltillo to the following effect: "Your gram advising to that effect was received at two messages date Westbrook signed Ever- 5 o'clock on the evening of the 5th. ett undelivered. Parties live two miles in Mr. Everett, the sender of the messages, the country. Have mailed copies.” This testified that he was foreman of the mill witness further testified that, while he was at which deceased was working at the time receiving the message stating that deceased of his illness, and that deceased had pneuwas dying, John Westbrook, the deceased's monia and died after an illness of five days; brother, came into his office and began writ- that deceased was known to him as Harry ing a telegram, but, before he had finished Jones, and his name was so written on the doing so, witness gave him the telegram he time book; but that he found from some had just received and Westbrook left the letters and scraps of paper on the person of office without finishing the telegram; that the deceased showing what his true name within a few minutes Westbrook came again was and where his family lived, and that he into his office while witness was receiving sent the messages herein mentioned. He tes. the third telegram containing the notice of tified further that he received the message deceased's death; and that this telegram from John Westbrook on the 6th directing was delivered in the office immediately upon him to "bury Bert nicely" and promising to its receipt. This witness testified that West- pay the expenses of the funeral. He testibrook returned again and at 8 a. m. on the fied further that these expenses had never morning of the 6th sent to Everett the tele been paid, although appellee had promised to gram containing the directions in regard to pay him out of the proceeds of this litigation. the burial and the promise to pay the ex The proof showed that Beebe was a town pense thereof.

of less than 5,000 people, and that under the The assistant postmistress testified that the rules of the appellant company, which nu. porter mailed two telegrams on the evening merous cases in this and other states have of the 4th, one addressed to the appellee, held to be reasonable, a free delivery was Rosa Westbrook and the other to John West- not required beyond a radius of a half mile brook, and asked her to assist him in deliv. from the telegraph office, and both Mrs. ering them as soon as possible.

Westbrook and her brother-in-law John WestThe porter testified that he knew appellee brook lived at a greater distance than that but did not expect to find her in town on beyond the corporate limits of Beebe. the afternoon of the 4th because of the sever Appellee introduced in evidence rule No. ity of the weather; but he thought he might 51 of the appellant company which governs find some one to whom he could deliver the special deliveries and the charges therefor, message; and that, after spending about 25 and which reads as follows: "If the servminutes in that attempt, he deposited the ice of a special messenger be required, and telegram in the post office. A negro named the special delivery charges have not been Pleas Love testified that Mr. John West- provided for, the sending office will promptbrook, who lived in the city of Beebe, and to ly notify by telegraphing the cost of deliv. whom the telegram had been first erroneously ery, and that office will endeavor to collect delivered by the operator, asked witness to the charges from the sender, who, if he pay notify appellee of the telegram and its con or guarantee the delivery charges, will also tents, and witness stated that he passed the pay for the message ordering a special dehome of Mr. Armspaugh about 5 o'clock in livery or guarantee the collection of the total the afternoon of the 4th and told Armspaugh thereon. If the sending office be unable to of this message and its contents. The wit-collect, or if a reply from the sending office ness is very positive as to the date, but the be not promptly received, a copy of the inesjury evidently did not believe his statements. I sage will be mailed to the addressee, and, if


another copy be afterwards delivered, the complied with. Immediately upon learning word 'duplicate' will be plainly written that appellee lived in the country, the operaacross its face.”

tor at Beebe advised the operator at Saltillo Geo. H. Fearons, of New York City, and of the conditions and of what he had done,

and the operator at Saltillo immediately Rose, Hemingway, Cantrell & Loughborough called Everett, the sender of the message, and E. L. McHaney, all of Little Rock, for

over the telephone, and Everett said it was appellant. S. Brundidge, of Searcy, for ap- satisfactory to him for the messages to be pellee.

mailed in the post office. Under these cir

cumstances appellant would have had no SMITH, J. (after stating the facts as authority to incur any expense in the delivabove). We have set out the evidence in ery of this message, and we think, as a matextenso because of the view we take of it, ter of law, that appellant was guilty of no and for the same reason we regard it un-breach of duty in failing to deliver this necessary to set out or discuss the instruc- message. King v. West. Union Telegraph Co., tions in this opinion. Appellee complains of 89 Ark. 402, 117 S. W. 521. the alleged negligent failure to deliver the

The court below should therefore have dimessages, one addressed to her individually rected a verdict in appellant's favor, and for and the other to her and John Westbrook its failure so to do the judgment must be jointly; the one advising her of her bus- reversed, and the cause will now be disband's illness, the other of his death. The

missed. first message she claims not to have been received until the morning of the 6th, and the other one not until the afternoon of that day.

BRINKLEY CAR WORKS & MFG. CO. V. [1] But a joint message may be delivered

COOK. to either of the addressees, and a delivery to (Supreme Court of Arkansas. Dec. 1, 1913.) John Westbrook was a delivery to appellee

1. CONTRACTS (8 71*)-CONSIDERATION-Surof the message addressed to her and to him.

. [2] It is true John Westbrook did at first An agreement not to exercise a legal right testify that the joint messages were not de- is a sufficient consideration to support a conlivered until the afternoon of the 6th, and he contradicts the operator's statement that Cent. Dig. SS 295, 296, 298, 316–324 ; Dec. Dig.

[Ed. Note.-For other cases, see Contracts, the delivery occurred in telegraph office; but, $ 71.*] although he says he received the messages 2. FRAUDS, STATUTE OF ($ 23*)—ANSWEKING through the post office, he does admit on FOR DEBT OF ANOTHER-ORIGINAL OR COLcross-examination, after his recollection has LATERAL PROMISE. been refreshed, that the messages were de pre-existing debt of another, founded on the

A promise by a third person to pay the livered to him on the afternoon of the 5th, original liability, without any new consideraand within a short time after their receipt tion to support it, is a collateral undertaking, for transmission at Saltillo. This brother and within the statute of frauds. lived a mile and a half from the town of [Ed. Note.-For other cases, see Frauds, StatBeebe, which was of course beyond the free

ute of, Cent. Dig. $S 18, 19; Dec. Dig. 23.*] delivery limits, and, although the messages 3. FBAUDS, STATUTE OF (8 33*)—ANSWERING

FOR DEBT OF ANOTHER-ORIGINAL INDEBTwere put in the post office, this proved to be a very expeditious method of delivering them Where plaintiff sold lumber for buildings, to him.

and the purchaser on request for payment stat[3] Nor does the proof show any negligence ed that defendant was indebted to him, and rein failing to deliver the first telegram. Ap- defendant, before the expiration of the time for

quested plaintiff to collect from defendant, and pellee resided beyond the free delivery lim-filing a lien, requested plaintiff not to file a its, and there is nothing in the record to in- lien, and promised to pay the debt if no lien dicate that a delivery of the message could chaser, in reliance upon which the plaintiff

was filed or action brought against the purhave been made within these limits. The forebore to and lost its right to enforce its evidence is undisputed that the weather was lien, •the defendant's promise was an original very inclement, and the colored porter, who undertaking upon a new consideration, and was knew appellee, testified that he had no hope not required to be in writing. of finding her in town on such a day but

[Ed. Note.-For other cases, see Frauds, Stat

ute of, Cent. Dig. 88 50-53, 56; Dec. Dig. § 33.*] that he looked around the town to find some one by whom he could send the message to Appeal from Circuit Court, Monroe Counthe country, and, failing to find any one, he ty; Eugene Lankford, Judge. deposited the telegram in the post office, aft- Action by the Brinkley Car Works & Maner advising the postmistress of its presence ufacturing Company against W. P. Cook. there and of its contents and after request- From an order sustaining a demurrer to the ing that she deliver it as soon as possible. complaint and dismissing it upon plaintiff's

[4] Nor do we think there was any negli- refusal to amend, plaintiff appeals. Reversgent failure to observe the rule 51 offered ed and remanded, with direction to overrule in evidence. This rule was substantially the demurrer.


[ocr errors]

*For other cases see same topic and section NUMBER (n Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Appellant was the plaintiff below, and al- , tion, and was not required to be in writing, leged in its complaint the following facts: and the demurrer should have been over“That during August and September, 1911, ruled. Zimmerman v. Holt, 102 Ark. 407, 144 it had sold and delivered to one Ben Hirsch S. W. 222, and cases there cited. certain lumber of the value of $352.65 for The judgment of the court below will the purpose of erecting buildings on his farm. therefore be reversed, and the cause remandThat when plaintiff requested payment from ed, with directions to overrule the demurrer. said Hirsch for said lumber, he stated that defendant Cook was indebted to him in a sum in excess of the amount which he owed

STATE v. CHICAGO, R. I. & P. RY. CO. to plaintiff, and requested the plaintiff to collect the amount from said defendant. (Supreme Court of Arkansas. Dec. 1, 1913.) That before the time had expired for filing 1. INDICTMENT AND INFORMATION ($109*),

STATUTORY OFFENSES. a lien on the building and land of said

An indictment charging a statutory offense Hirsch, defendant requested plaintiff not to must allege all of the elements essential to the file a lien or bring action against said Hirsch offense. for the payment of said sum, due for the

(Ed. Note.-For other cases, see Indictment lumber as aforesaid, and promised plaintiff Dig. & 109.*]

and Information, Cent. Dig. 88286-288; Dec. to pay said debt if action was not brought

2. RAILROADE against said Hirsch. That, relying upon the


FENSES. promise of defendant to pay said debt, plain Acts 1907, p. 353, § 1, requiring railroad tiff did not file a lien or bring action against companies at all junctions where two or more said Hirsch for the payment of said debt. part only from the depot, and section 2, re.

trains connect to have all passenger trains deThat said Hirsch has since sold the land on quiring all companies to have on duty at such which the improvements were made with depot a crier who shall cry the departure of all said lumber, and has left the State of Ar-trains, only requires that a railroad company kansas." The complaint further alleged a two or more railroads arrive or depart at or

have à crier at a junction where the trains of demand for payment by appellant and a re- near the same time, and hence an indictment for fusal to pay by appellee. The court sus- violating the statute was bad where it did not tained a demurrer to the complaint and dis- allege that the station was a junction where

two or more trains connect. missed it, upon appellant's refusal to amend,

(Ed. Note. For other cases, see Railroads, and this appeal is taken from that order. Cent. Dig. 88 773–788; Dec. Dig. § 255.*]

C. F. Greenlee, of Brinkley, for appellant. Appeal from Circuit Court, White County; Thomas & Lee, of Clarendon, for appellee. J. M. Jackson, Judge.

The Chicago, Rock Island & Pacific Rail. SMITH, J. (after stating the facts as way Company was indicted for failure to above). [1-3] An agreement not to exercise maintain a station crier pursuant to statute, a legal right is a valid consideration to sup- and, from a judgment sustaining a demur. port a contract. Lay v. Brown, 151 S. W.

rer to the indictment, the State appeals.

Affirmed. 1001. And the agreement alleged in the complaint was a new and original consideration, Wm. L. Moose, Atty. Gen., and Jno. P. moving between the newly contracting par- Streepey, Asst. Atty. Gen., for the State. ties, which takes the promise to pay Hirsch's Thos. S. Buzbee and Jno. T. Hicks, both of debt from without the statute of frauds. Little Rock, for appellee.

The controlling question in cases involving an agreement to pay the debt of another is HART, J. The state has appealed from whether the agreement so to do is original | the judgment of the circuit court of White or collateral. “A promise by a third person county sustaining a demurrer to the followto pay the pre-existing debt of another founding indictment: “The grand jury of White ed upon an original liability, and without county, in the name and by the authority of any new consideration to support it, is a the state of Arkansas, accuse the Chicago, collateral undertaking, and within the stat. Rock Island & Pacific Railway Company of ute of frauds." Kurtz V. Adams, 12 Ark. the crime of failing to provide a station 174; Chapline v. Atkinson, 45 Ark. 67, 55 crier, committed as follows, to wit: That the Am. Rep. 531; White v. Rintoul, 108 N. Y. | said Chicago, Rock Island & Pacific Railway 222, 15 N. E. 318.

Company, the same being a railroad corporaBut the facts alleged in the complaint are tion owning and operating a line of railroad that, subsequent to the making of the orig- through the state of Arkansas, in the county inal debt, the appellant refrained from pur- and state aforesaid, on the 1st day of Februsuing a statutory remedy to enforce the pay- ary, 1912, did then and there willfully and ment of its debt, and by so doing lost the unlawfully fail, refuse, and neglect to prolien given it by the statute, and this in- vide at its station at Higginson, White coundulgence was extended at appellee's request ty, Arkansas, the same being a junction point and in consideration of his promise to pay with the St. Louis, Iron Mountain & Southern the debt. This promise was therefore an Railway Company, a station crier whose original undertaking upon a new considera- duty it was to cry out the departure of its •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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