These are now common. It is certainly desirable that the law in respect to them should be definitely determined; but it is not so as yet.

If one party makes an offer and the party to whom it is made accepts it, there is a contract. But some years ago, the question came before the English courts, and afterwards before our own, whether, when the acceptance was made by letter, the acceptance was complete when the letter was mailed, or not until that letter was received. The full presentation of the law on that subject made in a former chapter, (y) shows the difficulty, uncertainty and fluctuation of the adjudication on this subject. It was not for a long time settled, if indeed it is fully so even now, that the which he had notice, they have committed no breach of duty for which they can be held liable to him. Besides, it is difficult to see how the plaintiff, who claims through the contract entered into by the sender of the message with the defendants, which created the duty and obligation resting on the defendants, can claim any higher or different degree of diligence than that which was stipulated for by the parties to the contract. Certainly, a derivative or incidental right cannot be greater or more extensive than that which attached to the principal or source whence such right accrued or was derived. The court say of Dryburg's case: "It differs from this in the essential particular that it was not proved that the defendant in error had any notice or knowledge of the regulations of the company, by which their liability was restricted." - In a recent English case, Playford v. United

Kingdom Tel Co. Law Rep. 4 Q. B. 707, an action was brought by the receiver upon a case stated without pleadings, and it was held that he could not recover. The court say: "The obligation of the company to use due care and skill in the transmission of the message is one arising entirely out of the contract. The plaintiff who is a stranger to the contract with the company, cannot maintain an action against them for the breach of it." - In Rose v. U. S. Tel. Co. 6 Rob. 806, the plaintiff was a broker, who received a message, and was led by a mistake to sell 6,000 barrels of oil instead of 600. But he disclosed the name of his principal; and it was held that he was not liable on the contract of sale, and therefore could not maintain the action; implying, that otherwise, though only a receiver of the message, he might. (y) Ante, vol. i. p. 483.

contract * was complete when the letter of acceptance was mailed, the acceptor having then no knowledge of any withdrawal of the offer.

Is this now the law in respect to contracts by telegraph? It certainly is not so settled. There is some adjudication on the subject, but it is contradictory, and leaves the question undetermined. (z) 1 It may be that a custom will grow up, or a course of adjudication take place, which will place the telegraph on precisely the same footing as the mail; and certainly some adjudication, and opinions of much weight look in this direction. Such is not our own opinion at present. There may be reasons why this should become a part of the law-merchant; but we cannot think it is so now.

The reasons for not holding it may easily be stated.

t They, * in fact, resolve themselves into two. One is, that the mail is a governmental institution. It is the agent of

(z) The only case in which this question appears to have been directly passed upon is that of Trevor v. Wood, 41 Barb. 255, 86 N. Y. 307. The plaintiffs and defendants were all brokers; the former doing business in New York, the latter in New Orleans. There was an arrangement between them that negotiations for sales should be conducted by telegraph. On the 30th of January, plaintiffs sent a telegram to defendants, inquiring the price for which they would sell a certain quantity of bullion. Defendants replied on the following day, naming the sum. Plaintiffs immediately replied accepting the offer, and renewed their acceptance on the following day. Owing to some derangement of the line, the two last-mentioned messages were delayed, and were not received until February 4th. On the 3d, the defendants, having received no reply to their offer, sold the bullion, and notified plaintiffs of the sale. On this state of facts, the Supreme Court of New York held that the plaintiffs could not recover, as there was no completed contract between the parties at the time the bullion was sold; that the plaintiffs must be regarded as having undertaken to bring home to the defendants their acceptance of the offer made; and that the agreement to negotiate by telegraph was a warranty, by each party, that his communication should be received by the other. They further held that a communication is only initiated when delivered to the operator, and becomes complete only when it comes to the possession of the party to whom it is addressed; and that the rule which prevails as to acceptances made by mail does not apply to telegraphic communications, giving the reasons stated in the text This decision was overruled by the Court of Appeals, 86 N. Y. (9 Tiff.) 307, where it was held that contracts made by telegraph are subject to the same rules as those made by letter; that the rule laid down in Mactier v. Frith, 6 Wend. 108, as to acceptance of an offer by letter, governed the present case; and that the contract became binding from the time the plaintiff's offer of acceptance was delivered to the operator. The court say: "It was agreed between the parties that their business should be transacted through the medium of the telegraph. The object of this agreement was to substitute the telegraph for other methods of communication, and to give to their transactions by it the same force and validity they would derive if they had been performed through other agencies. Under these circumstances, the sending of the dispatch must be regarded as an acceptance of the respondent's offer, and thereupon the contract became complete."