1 A contract by telegraph, like one by mail, is completed when the acceptance is deposited for transmission in the telegraph office. Minnesota Oil Co. v. Collier Lead Co 4 Dillon, 431.

•267 u all the people and of every one of them, and may be considered as, if not guaranteed to a certain extent by the government, still guarded as well as regulated by the power of the government. It is not so with the telegraph. Efforts are now making to place telegraphing in the hands of the government and put it on the same footing as the post-office. It may become so, but it is not so yet. State statutes do not require nor institute a telegraph, nor hold it as public property; they only permit it, and confer upon it certain rights, and lay upon it certain duties.

Another reason is, that when a letter is delivered, it is perfectly certain that the assent of the accepting party, in precisely his own words, is, so far as the writer can do it, made known to the offerer. This can never be certain where the message is sent by telegraph. The operator or copyist, at either end, may make a mistake. Accuracy may be made extremely probable by returning the message; but never certain while it is possible that the mistake in sending is corrected, perhaps by another mistake, in returning the message. We are of opinion therefore, that, at present, the contract is not complete, until the message of acceptance is received, or, at least, that the law is not settled otherwise. And so far as the State statutes touch this question, they would seem to require delivery to the receiver, or to make the delivery of the message to the operator alone insufficient.

Still another but a connected question may arise; and, indeed, has arisen. There are frequent occasions when a party is bound to give information as soon as possible. This may be by positive and express contract, or by a plain inference from the nature of the transaction, or from the relation and duty of one party to the other. Is the party thus bound, obliged to use a telegraph if the same be within his reach?

Here, also, we must wait for adjudication before we know certainly what the law is. But there are strong reasons for requiring the use of these means, and they grow stronger * every day. And the adjudication which looks in this u direction favors this conclusion. (a)

(a) Proudfoot v. Monteflore, L. R. 2 Q. B. 611, action on a policy of insurance. Defence, concealment of material information by the assured. Plaintiff's agent shipped a cargo of madder from Smyrna, on the 21st of January, having previously informed plaintiff of the intended shipment, and its amount. News of the vessel's stranding reached the agent on the 24th. On the 26th, the next post day, he notified plaintiff of the disaster, but purposely refrained from telegraphing, in order that plaintiff might insure, which he did before the receipt of the

257 v

One exception however most still be made. Notices of nonpayment or non-acceptance of negotiable paper, remain, as yet, in our opinion, on their old footing. That is, if notice be sent seasonably by telegraph and seasonably received, we have no doubt it would be valid. But one bound to send such notice has a right to send it by mail, and if he mails it in season he discharges his duty and secures his rights, whether the letter be received or not. It is not so, if the notice be sent by telegraph, and be not delivered in season. And even in states where by statute legal notices and processes and instruments may be effectually sent or served, by telegraph, we hold delivery essential to complete the work, which is only inchoate when the instrument or paper is delivered to the telegraph company.

In our chapter on the Statute of Frauds (b) it will be seen that one of the provisions of the English statute - that permitting actions to be maintained upon certain contracts only when they are in writing signed by the party to be charged - is generally in force in our country. The same chapter will show what is the prevailing construction as to this requirement of writing and signing. We think the principles already well established when applied to contracts made by telegraph, will lead to the conclusion that they satisfy this requirement. This is the effect of some of the state legislation concerning telegraphs. The question has not yet been directly decided; but it has been considered by the courts, and especially in reference to guaranty. Our notes will v * show the adjudication on the subject. (c) l Orders for last letter. The court say: "We think if clear, looking at the position of Rees as agent to purchase and ship the cargo for the plaintiff, that it was his duty to communicate to his principal the disaster which had happened to the cargo; and, looking to the now general use of the electric telegraph in matters of mercantile interest, between agents and their employers, we think it was the duty of the agent to communicate with his employer by this speedier means of communication." See also The Convoy's Wheat, 8 Wall. 226.

(b) Vol. III. p. * 3.

(c) In Howley v. Whipple, 48 N. H. 487, the court say: "When a contract is made by telegraph, which must be in writing by the statute of frauds, if the parties authorize their agents either in writing or by parol to make a proposition on one side, and the other party accepts it through the telegraph, that constitutes a writing under the statute of frauds; because each party authorizes his agents, the company, or the company's operator, to write for him; and it makes no difference whether that operator writes the offer or the acceptance in the presence of his principal, or by his express direction, with a steel pen an inch long, attached to an ordinary penholder, or whether his pen be a copper wire a thousand miles long." So in Dun1 A message received by telegraph is not admissible to charge the sender, without proof of the loss of the original, and of its authorization by the sender. Smith v. Easton, 54 Md. 138. But in Saveland v. Green, 40 Wis. 431, the message received was held original evidence, on the ground that the telegraph company was the agent of the sender.

257 w goods are constantly made by telegraph, and they may be accepted by telegraph, by letter, or by act. And neither party will be responsible to the other for the mistake of the telegraph. (cc)