attachment liens. The court held that the fact that the estimated value of the real estate sold by the sheriff was greater than the amount realized at the sale, and sufficient. to pay plaintiffs' claim, did not impose on the plaintiffs the duty of buying the same, and discharging the prior liens, in the absence of evidence that plaintiffs were able to do so, and that it was their duty, as ordinarily prudent men, to do so.1

416. Further as to Contributory Negligence of the Sender. The contributory negligence of the person sending the message may bar his right of recovery. The Supreme Court of Indiana has held that a person addressing a telegram to" Mrs. La Fountain, Kankakee," a city of twelve thousand inhabitants, and failing to make the address more definite, on the company calling his attention thereto, is guilty of contributory negligence barring recovery of a statutory penalty for failure of a company to properly transmit."

Person

§ 417. Contributory Negligence of the Receiving the Message.-In the case of a mistake in a message, which is of such a character as to convey to the receiver the suggestion that it is probably the result of mistake, if the receiver goes ahead and acts on conjecture, without having the message repeated back, or taking any other measure to ascertain whether or not it is a mistake, he will be precluded by his own negligence from recovering damages, under the ordinary rule of contributory negligence. This is well illustrated by a case in which the plaintiff sent a dispatch in relation to certain bonds which 1 Western Union Tel. Co. v. Sheffield, 71 Tex. 570; s. c., 10 S. W. Rep. 752.

2 Western Union Tel. Co. McDaniel, 103 Ind. 294.

concluded: "Hatch says hold undoubted." As delivered the message read: "Hatch says hold undoubled." The plaintiff's agent, interpreting this as an order to sell, sold the bonds without having the message repeated, or making further inquiry. It was held that the sale was attributable to the negligence of the plaintiff's agent in omitting inquiry and acting on conjecture, and consequently that there could be no recovery."

1 Hart v. Direct, etc. Tel. Co., 86 N. Y. 633.

(26)

CHAPTER XIII.

PARTIES TO ACTIONS AGAINST TELEGRAPH COMPANIES.

SECTION.

422. English Rule that Sender only can Sue.

423. Even in the Case of Malfeasance.

424. Unsoundness and Injustice of the English Rule.

425. Exception where Sender is Agent of Addressee.

426. American Rule: Action by Addressee for Non-Delivery.

427. View Which Sustains the Right of Action in the Addressee. 428. Action by Addressee for Mistake.

429.

Illustration of These Views.

430. When the Addressee must Sue in Tort.

431. Where the Sender is Agent of a Third Person, Principal may Sue.

432. Although He be an Undisclosed Principal.

433. So, where Sender is the Agent of the Addressee.

434. Broker Transmitting Message for Principal and Suing in His Own Name.

435. Stranger to Both Sender and Addressee.

436. Importance of the Defendant having Notice of the Agency. 437. Action over by Sender for Damages Sustained by Receiver and Recovered from the Company.

438. Under Indiana Statutes Giving Penalties.

439. Under Indiana Statute Giving Special Damages.

440. Under Missouri Statute Giving Special Damages.

441. Under Mississippi Statute Giving Penalty.

442. In Case of Refusal of Connecting Line to Forward. 443. Husband Suing for Wife-Texas Code.

§ 422.

English Rule that Sender only can Sue.In England, by analogy to the doctrine which ap

plies in respect to common carriers and other bailees, it is held that no action will lie against a telegraph company by the person addressed for the mis-delivery of a telegram or error in its transmission, unless there is either a contract between him and the company, or fraud on the part of the company in respect of the duty which it has assumed.'

§ 423. Even in the Case of Malfeasance.-Under the English rule, the company will not be liable to the receiver of a telegram, even for misfeasance. This is shown by a case where the plaintiffs, merchants at Valparaiso, received a message erroneously directed to them by the company's agent, purporting to come from their branch house at Liverpool, instructing them to ship barley, and did so, and great pecuniary loss resulted in consequence of a fall in the market. The message was, in fact, neither sent by their Liverpool branch nor intended for the plaintiffs, but was sent by another Liverpool firm to their correspondent at Valparaiso. It was held that the plaintiffs owed the defendants no duty growing out of contract, as the only contract made was with the person employing them to send the message, nor were they liable by reason of negligence; because, said COTTON, L. J.: "It is impossible to suppose that the company, in the ordinary course of their business, warrant that the message. comes from a particular person, for they would thereby make a representation of the truth of which,

1 Dickson v. Reuter's Tel. Co., 2 C. P. Div. 62; s. c., 46 L. J. (C. P. Div.) 197; 35 L. T. (N. S.) 842; 25 W. R. 272; 19 Moak Eng. Rep. 313; s. C., affirmed on appeal, 37 L. T. (N.S.) 370; 26 W. R. 23; 3 C. P. Div. 1; 30 Moak Eng. Rep. 1; Playford v. United Kingdom Tel. Co., L. R. 4 Q. B. 706; s. c., 10 Best & S. 759; 38 L. J. (Q. B.) 249; 17 L. T. (N. S.) 243; L. R. 4 Q. B. 706; 16 Week. Rep. 219; 17 Week. Rep. 968.

in many cases, they cannot ascertain."" The remarks of the learned justice would seem to apply only in cases of forged telegrams. The force of this argument is not preceived in cases like the one in which it was made, where the mistake arose wholly from the negligence of their agent in deciphering the dispatch.

§ 424. Unsoundness and Injustice of the English Rule. The English rule does not rest on any sound principle, and proceeds upon a gross indifference to justice. The receiver of the message, who is damnified by the mistake of the company, must surely have an action either against the company, or against the sender of the message, on the theory that the company is the agent of the sender. But the sender of the message may be insolvent, and therefore the receiver is left remediless against the real author of the wrong. It is idle to explore such conceptions as that the receiver can procure the sender of the message to sue for his benefit, or that the sender may sue and recover, and the receiver have an action over against him. Such conceptions, which deny a direct remedy against the real author of the wrong, are unworthy of any civilized system of jurisprudence. The gross injustice of the English rule is not only illustrated by the case cited in the preceding section, but also by the following case: The plaintiff, having a cargo of ice on board a ship at Grimsby, telegraphed to R. and H. at Hull, asking them to make an offer for it, and requesting them to send an answer by telegraph. R. and H. sent to the office of a telegraph company a message for

1 Dickson v. Reuter's Tel. Co., 2 C. P. Div. 62; s. C., affirmed in Court of Appeals, 3 C. P. Div. 1, and also as cited in preceding section.