We must look to the obligations of the parties to learn what constitutes a breach. So far as the sender is concerned it would seem to be practically confined to his non-payment of the price of his message; and of this nothing need be said.

Dryburg v. N. Y. & Wash. Pr. Tel. Co. 85 Peon. St Rep. 208, where the operator altered the dispatch for the purpose of supplying what he supposed to be an omission.

(rr) This regulation has generally been held to relieve the company from liability for errors arising in the course of transmission, as may be seen in the cases cited in the last note. But the general principle, that this regulation will not relieve the company from liability for the negligence or unskilfulness of its servants, is laid down also in the same cases. It was held, that the company were still liable for damages caused by want of proper skill and care in their servants, or from defective instruments; also, in 8weatland v. Ill. & Miss. Tel Co. 27 Iowa. 483.

1 Tyler v. West. Tin. Tel. Co. 60 Ill. 421.

If injury is sustained by reason of imperfection of posts, m * wires, or of instruments, or of want of care or skill in the use of them, we are not aided by direct adjudication in determining the liability of the companies. We believe it would rest upon the common law of contract, and not on any supposed analogy to the stringent liability of common carriers. Hence we should say that the company would be liable if the mischief was caused by their negligence, either as to instruments or servants, or by the negligence or default of their servants while acting in their service; and not otherwise. (s) 1 If such unfitness of instruments or incompetency or default of their servants were shown, the burden of proof would rest on the companies, to show an absence of negligence on their part, or of liability for the acts or defaults of their servants. They must receive all messages, and send them in the order received. The statutes make some exceptions, and the common principles of law make others, as stated in the previous section. But a company which disregards this requirement, must bring itself under some of these exceptions, or be liable for the consequences. It hardly needs be said, that if the company, induced

(s) In the absence of any stipulations restricting their liability, telegraph companies have been repeatedly held liable for the negligence of their servants. Thus, in U. S. Tel. Co. v. Wenger, 56 Penn. St. R. 262, a message sent by the plaintiff's line to New York was transmitted only to Philadelphia. The court say: "No such reason as the law would recognize, and indeed no reason at all, was given for the failure to transmit the message to its destination. Thus was presented a clear case of gross negligence against the company, in performing its undertaking, and a consequent liability to the plaintiff for such damage as he had sustained in consequence thereof." 80 in Landsberger v. Magnetic Tel. Co. 82 Barb. 530, where, by the negligence of the operator, the address of the person to whom the message was sent being incorrectly transmitted, the company was held responsible. - In Leonard v. N. Y., etc. Tel. Co. 41 N. Y. 644, where an order for five thousand sacks of salt was changed to five thousand caskst the court say: "No excuse is given for this error, and no explanation, unless it be that the characters by which these words are designated nearly resemble each other. No doubt this would furnish a reason why a person ignorant of telegraphic characters, or unskilled in their reading, should misunderstand them. Such are not the persons the defendants are permitted to employ in their business. Those engaged in it profess to understand the hieroglyphics. They are bound also to use the machinery which will in the best and safest manner deliver to them the expected messages. Careless reading, or ignorant management of the machinery, is no excuse; it is simply an aggravation of the offence. The negligence was quite enough to sustain the action." See Bowen v. Lake Erie Tel. Co. 1 Am. Law Reg. 685; De Rutte v. N. Y., Alb. & Buf. Tel. Co. 1 Daly, 547; Dryburg v. N. Y. & W. P. Tel. Co. 86 Penn. St. R. 296; Rittenhouse v. Ind. Line of Tel. 1 Daly, 474; Lane v. Montreal Tel. Co. 7 Upper Canada (C. P.), 23; Wash. & N. O. Tel. Co. v. Hobson, 16 Grat. 122.

1 Where a servant in the sole employ of the defendant's agent, a telegraph operator, was allowed in the agent's absence to transmit and receive messages, and sent a fraudulent order for money in the name of the cashier of a bank to a distant bank, and himself collected the money by personating the payee, the defendant was held responsible to the defrauded bank. Bank of California v. West Un. Tel. Co. 52 Cal. 280.

257 n by a higher price, which would in part be a bribe, gave to one applicant an advantage *over another, the in *267n jured applicant would hold the company liable. (t) So it would be if preference was given from personal favoritism, and not for money. As the statutes regulating telegraph companies generally require emphatically this equality and impartiality in the treatment of their customers by the companies, it may be that a breach of this obligation would be thought to justify exemplary damages, as an offence against the public.

If an operator sees fit to alter a message for the purpose of correcting it or amending it, we cannot doubt that the company should be liable for all injury caused by the change. (u)

We have seen that secrecy is another obligation of the company; and this obligation must give them the power, and make it their duty, to exclude or remove not only from their employment, but from their office, spies, or listeners, and to confine the knowledge of the contents or character of the message, to the operators employed in sending it, and to hold them to strict secrecy. We believe the company would be responsible for the breach of any part of this duty.

Some difficulty exists as to the obligation of delivery. But it is a difficulty of fact rather than law. There can be no doubt that the company are bound to deliver the message, accurately, promptly, and to the right person;1 and as little doubt, that this obligation includes the duty of using all reasonable efforts to be accurate, and prompt, and to be certain as to the person entitled to receive the message. We should hold it equally a breach of duty to be negligent in the use of knowledge which they possess,

(t) In the case of Reuter v. Electric Tel. Co. 6 EL & Bl. 341, it was held that a provision in the charter of the company that its lines should be open for the sending and receiving of messages by all persons alike, without favor or preference, was not violated by an agreement with the plaintiff to transfer, half-price his dispatches containing public intelligence, the court saying that this allowance "seemed rather a remuneration to him for his services in collecting public intelligence, and bringing custom to the company, than any preference or partiality to him in the use of the telegraph." In U. 8. Tel. Co. v. Western Union Tel. Co. 66 Barb. 40, the defendant company put upon their blanks for moneys a provision that the company would not be liable to any other telegraph company for error or neglect. The action was for refusal to send a message, and was brought under the New York statute; and judgment was rendered for the plaintiff.

(u) See note (k), ante.

1 Where a telegraphic money-order is sent in answer to a request by telegraph, the company is not bound to ascertain that the sender of the request is an impostor, and payment to him will relieve the company from liability. West Un. Tel. Co. v. Meyer, 61 Ala. 158.

267 o or in the use of means * and efforts to obtain the knowl o edge necessary for the proper performance of the service they undertake. But what would be reasonable, and therefore requisite, care and effort in any case, must depend upon the circumstances of the case, and be a question for the jury under the instruction of the court. We do not hold them to be insurers, as common carriers are. There is however one point in which their duty of delivery is analogous to that of carriers. If the nature or character of the message, and still more if its express words, make it a case in which the utmost promptitude of delivery is requisite, by undertaking the transmission of such a message, they promise that promptitude of delivery. (v) 1

We have already said that they certainly may make reasonable rules for the transaction of their business, and require a reasonable regard for these rules on the part of their customers. Questions of this kind have often been before the courts, as our notes will show. And there is still some uncertainty as to the whole of the legal effect of the rule requiring that messages be repeated, or rather returned to the sender, under the penalty of relieving the companies from responsibility for inaccuracy.

It is held not only that the company is governed by the common relation of master and servant, as to their liability for the defaults of their servants, but also as to their liability to their servants. (w)

(v) In Bryant v. Am. Tel. Co. 1 Daly, 575, an order was sent by telegraph from New York, to an attorney in Providence, directing the attachment of a house in the latter city. It was explained to the operator that, unless the dispatch was received before the arrival of the train then on its way between the two cities, the attachment could not be made; and he was informed that any extra charges necessary to insure accuracy and dispatch would be paid. There was a delay of two hours in sending the dispatch from the receiving office, and when delivered it was too late. As the company was fully informed of the nature of the message, and the reasons for haste, they were held liable for the full amount of the debt which the plaintiff would have recovered had the dispatch been promptly delivered. See also Parks v. Alta Cal. Tel. Co. 13 Cal. 422. In U. S. Tel. Co. v. Wenger, 66 Penn. St. R. 262, an order for the purchase of stock was delayed, and by a rise in the market the plaintiff suffered loss. The court say: "The dispatch was such as to disclose the nature of the business to which it related, and that the loss might be very likely to occur if there was any want of promptitude in transmitting it."

(w) Byron v. N. Y. State Printing Tel. Co. 2ft Barb. 39.

1 See Tyler v. West Un. Tel. Co. 60 Ill. 421.