Sec 1052

We have seen that a party employing a telegraph company is bound by the message the company delivers.1 The same principle would make the principal liable on an invalid bargain his agent makes for him within the range of the agent's authority; and would also make him liable for the agent's negligence under such circumstances.2 The invalidity of the bargain would not relieve the principal in such cases. So, as we will see, a party who negligently contracts to do something for another for whom he is not authorized to act, is liable to the promisee for any damages incurred by the latter through the former's error.3

Sec 1053

In all cases based on the negligence of the defendant, the plaintiff's contributory negligence is to be taken into account.4 Thus in an action against an infant for negligently representing himself to be of full age, it would be a defence, as we have seen, that the promisee ought to have been put on inquiry by the infant's appearance;5 and the same conclusion would be reached in all cases in which the promisee, if he exercised ordinary vigilance, would have made inquiries which would have shown the error.6

Sec 1054

Suppose A. represents to me that he is authorized to make with me a particular bargain, and suppose that on the faith of such bargain, I make certain disbursements or receive certain detriment; can I recover compensation for these losses from A.? There is no question that I can in cases of fraudulent misrepresentation,7 and there is equal reason to hold that A. would be liable to me for a negligent misstatement of a fact as to which A. ought to have known the truth.8 Hence a telegraph company would be liable for failure to transmit, in aca contract for the purchase of such a book, the party ordering would nevertheless be required to reimburse the bookseller for any damages he may have negligently incurred in executing the order.

Party employing an agent is liable for hitter's negligence.

Contributory negligence is to be taken into account.

Illustrated in suits against agents for unauthorized action.

1 See supra, sec 27.

2 See Wh. on Neg. sec 756 et seq.

3 Supra, sec 1043 et seq.; infra, sec 1054.

4 Wh. on Neg. sec 300 et seq. 5 See supra, sec 53, 1047.

6 Supra, sec 245.

7 See supra, sec 232 et seq.

8 Supra, sec 241, 1043.

cordance with its published terms, a telegram left with it.1 It should be added, that in such cases an action might be sustained on an implied contract against the party in accordance with whose invitation work was done or money expended.2

Sec 1055

Liability on advertisements has been already distinctively considered; and it has been seen that if a party advertises a reward for certain services, or offers by public notice to do or give certain things in exchange for a quid pro quo to be rendered, the performance of the services or the rendering of the quid pro quo establishes a contractual relation with the party making the offer.3 Suppose, however, that no such contractual relation is established; is not the party making the offer liable in damages to parties who without negligence incur loss by acting on it? The affirmative is maintained by Ihering with strong reason.4 In this view a common carrier advertising that he would carry passengers to a particular point on a particular day, would be liable to parties for damages they sustained by his failure to be ready at the designated time.5 sec 1056. The principle before us will sustain the rulings by which telegraph companies have been held liable for failure in discharge of duty. This cannot be put on the basis of abuse of general duty, or abuse of franchise, as it is sometimes called, since a third party, having no business connection with the company as to a particular message transmitted by the company cannot sue the company for damages he has sustained in consequence of misstatements in such message. It is otherwise, however, as to a party who has entered into a contractual relation with the company by making or accepting the company as his agent for the transmission of information. Hence, a telegraph company is liable to the sender and to the receiver of messages which it negligently misinterprets;1 and wherever it assumes the duty of communicating with a particular person, and that duty is accepted by such person, then he may maintain an action against the company for negligence in performance of the duty.2 It is true that a sendee, as we have seen, cannot maintain an action against the company for non-delivery of a message without first proving an offer accepted by him, to deliver to him the particular message;3 but as soon as such an offer is made (and that it has been made may be inferred from prior dealings as well as from the reception of the telegram) and accepted, by being acted on, an action will lie against the company by a party thus entering into contractual relations with it. Hence, a telegraph company has been held liable to the receiver for its negligence in sending a dispatch in the name of a cashier who the operator ought to have known did not authorize the use of his name.4 - These distinctions are of peculiar importance in view of the imperfections attending the transmission of intelligence by telegraph. (1) The senders of messages, in order to diminish expense, and sometimes to hide their meaning from the eye of strangers, confine themselves to general terms, or use simply catchwords or signs which are open to constant misconception. They write often in a hurry; and when they write deliberately they are peculiarly apt to subordinate the sense in which a word will be accepted to the sense which, after long pondering, the}* attach to it. (2) In the translation of words into telegraphic signs, disturbing influences constantly intervene. It has been frequently noticed that blunders will, in the most inexplicable way, creep into print, notwithstanding the supervision of the most careful proof-reading. But the chances of involuntary transmission of words, as well as of intentional corruption, is far greater with telegraphic operators than it is with printers. A telegraphic operator works from manuscript peculiarly obscure, with no subsequent proof-reading; and a telegraphic operator, instead of transferring words to per-manent type, puts them into signs which instantaneously vanish from his eye. These signs, also, have not the sharp differential features of printed words. They are dots and strokes, liable to be mistaken for each other; and there are some words of which the signs are so similar as to cause them to be frequently interchanged. (3) The receiving operator not only, as in the last case, may misunderstand the signs, but may write them in such a way that his writing may be misinterpreted. - The consequence of these various disturbing influences is, that the proportion of errors in telegraphic communications is far greater than in any other documents subject to judicial criticism. In view of the large and growing amount of busi-ness transacted by telegraph, it is important to keep the principles heretofore stated in this connection in mind. These principles are: (1) A telegraph company is agent for the party sending through it a dispatch;l and also of the receiver, as soon as he enters into contractual relations with the company. (2) The sender of a message is liable to the sendee for damages sustained by the latter from acting on the message as delivered; and the telegraph company is liable to the sender if to its negligence the error is imputable.2