The first question might seem to be, Is there any contract whatever between the company and the receiver; are they under any obligation whatever to him; or what basis can there be for any such contract, or what consideration does the company receive from him?

We believe it to be generally the case, that the company contract only with the sender, and are under no obligation to any one else. It may well be that the receiver is injured by the default of the company. Because they carelessly mistook the message, or did not deliver it to the right person, or delayed its delivery, or let its contents become known to others, he to whom the message was sent may have lost an opportunity of important advantage, or indeed, may sustain direct loss. But the mere fact of such loss, so caused, would not give him a remedy against the company. This he can have only when malice or other circumstances give him an action of tort, or where the sender is in fact the agent of the receiver, and the company do in fact make their contract with the receiver as a principal, through the sender as his agent.

Where this relation is known to the company at the time, and they act with that knowledge, there can be no question of their contract with the receiver. It is a different question, when, although such agency exists, it is not stated to the company in any way, and there was nothing in the message or in the transaction to lead the company to suppose any such agency existed. Is the company now liable to the actual although unknown principal? So far as adjudications aid us in answering this question, they would seem to favor the conclusion that this agency might be inferred from, or proved by, evidence that the transaction was for the benefit of the receiver, and that it was he who was mainly, if not

•257 q q *only, interested therein. (x) 1 Then, if the price paid for the message be paid by the sender, it is so far to be re(x) De Rutte v. N. Y., Alb. & Buf. Tel. Co. 1 Daly, 547. Plaintiff was a commission merchant in California. His brother Theophilus was his agent and correspondent in France, but had no other interest in his business. The latter procured from parties in Bordeaux an order for plaintiff to purchase for them a cargo of wheat, at a price not to exceed twenty-two francs per hectolitre. This order was sent to New York, and thence transmitted by defendant's line to San Francisco. The message received read twenty-five francs instead of twenty-two, and plaintiff, having purchased at that price according to the order, was put to serious loss. On the question of the plaintiff's right to sue, the court say: "The next objection taken by the defendants is, that they entered into no contract with the plaintiff; that they made their contract with Theophilus De Rutte, who sent the message acting as the agent of Callarden & Labourdette. It does not necessarily follow that the contract is made with the person by whom or in whose name a message is sent. He may have no interest in the subject-matter of the message, but the party to whom it is addressed may be the only one interested in its correct or diligent transmission; and, where that is the case, he is the one with whom the contract is made. The business of transmitting messages by means of the electric telegraph is like that of common carriers, in the nature of a public employment; for those who engage in it do not undertake to transmit messages only for particular persons, but for the public generally. They hold out to the public that they are ready and willing to transmit intelligence for any one, upon the payment of their charges; and, when paid for sending it, it forms no part of their business to inquire who is interested in, or who is to be benefited by, the intelligence conveyed." "But if we leave out of view altogether the question with whom the contract was made, the defendants would still be liable to the plaintiff for putting him to loss and damage through their negligence in transmitting to him an erroneous message." In Bowen v. Lake Erie Tel. Co. 1 Am. Law Reg. 685, the action was brought by the receiver, but it appears to have been in tort. In N. Y. & W. Pr. Tel. Co. v. Dryburg, 35 Penn. St. R. 208, the court say: "It is said that, upon the general principles of agency, the company can be held answerable to the sender only. That the relation of principal and agent existed between him and the company, there can be no doubt; but I do not think it equally clear that that relation was not established between Dryburg and the company. Telegraph companies are in some sort public institutions, open alike to all, and largely used in conducting the commerce of the country; and, when a man receives a message at the hands of the agent of such a company, and acts upon it, it seems reasonable that, for all purposes of liability, the telegraph company shall be considered as much the agent of him who receives as of him who sends the message. In point of fact, the fee is often paid on delivery; and I am inclined to think the company ought to be regarded as the common agent of the parties at either end of the wire. But, however this may be regarding the company only as the agent of the sender of the message, is it to be doubted that an agent is liable for misfeasance even to third parties?" The court further held that the rule as to unrepeated messages would not protect the company, as the plaintiff had no means of knowing whether the message had been repeated or not. In Ellis v. Am. Tel. Co. 13 Allen, 226, the action was in tort by the receiver of the message. It was held that the company was protected by the clause as to unrepeated messages, which, it appears, was inserted also in the paper on which the message was delivered to the plaintiff. The court say: "It may be a sufficient answer to such a claim that, according to the reasonable rules by which they were governed in the performance of their undertaking towards the plaintiff, and of garded as *paid by the receiver, - whether charged to r him or not as between him and the sender, - as to afford a sufficient consideration for the implied contract between him and the company. And for any breach he might have his action; and the sender could not sue unless he too sustained an injury, and then only for that injury.

1 That no action will lie against a telegraph company, at the suit of the receiver, for the misdelivery of a telegram, unless there be either a contract between him and the company, or (possibly) fraud on their part in the transmission of it, see Dickson v. Renter's Telegraph Co. 2 C. P. D. 62; affirmed in Dickson v. Renter's Telegram Co. 3 C. P. D. 1, on the ground that the plaintiff could not maintain any action based upon the defendant's negligence, or of an implied representation of authority from the sender. But in Texas, damages are recoverable for the disappointment to a son caused by the neglect of a telegraph company to deliver a telegram announcing his mother's death, and requesting his attendance at the funeral Relle v. W. U. Tel. Co. 55 Tex. 308.