By analogy to the law governing contracts by mail, it is held that a contract by telegraph may be completed by delivering a telegraphic dispatch of acceptance for transmission at the receiving office of the telegraph company.7 The same analogy will probably prevail in the case of contracts by telephone.8 The analogy between the telegraph and mail is by
7 Minnesota Oil Co.v . Collier Lead Co., 4 Dill. 431; Garrettson v. North Atchison Bank, 47 Fed. 867; Andrews v. Schreiber, 93 Fed. 367; Weld v. Victory Co., 206 Fed. 770; Bank of Yolo v. Speny Flour Co., 141 Cal. 314, 74 Pac. 866, 65 L. R, A. 90; Haas v. Myers, 111 111. 421, 427, 53 Am. Rep. 634; Cobb v. Foree, 38 111. App. 255; Western Union Tel. Co. v. Allen, 30 Kans. 229, 119 Pac. 981; Postal Telegraph Cable Co. v. Louisville Oil Co., 140 Ky. 506, 131 S. W. 277; Tyng v. Converse, 180 Mich. 195, 146 N. W. 629; Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511; Wester v. Casein Co., 206 N. Y. 506, 100 N. E. 488, 490;
Williams v. Burdick, 63 Ore. 41, 125 Pac. 844; Perry v. Mt. Hope Iron Co., 15 R. I. 380, 5 Atl. 632; Kenedy Mercantile Co. v. Western Union Tel. Co. (Tex. Civ. App.), 167 S. W. 1094. Contra is Beaubien Produce Co. v. Robertson, Rap. Jud. Quebec, 18 C. S. 429.
8 Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 74 Pac. 855, 66 L. R. A. 90; Tung v. Converse, 180 Mich. 195, 146 N. W. 629; Planters' Oil Co. v. Whitesboro Cotton Oil Col (Tex. Civ. App.), 146 S. W. 225; Cuero Cotton Oil Mfg. Co. v. Feeders' Supply Co. (Tex. Civ. App.), 203 S. W. 79. The point decided by these cases related to the place of a contract rather than to its existence, but the decision that the place where the acceptor speaks is the place of the contract necessarily involves the conclusion that it is the no means perfect, and the telephone presents still greater differences from the mail. In the United States, neither the telegraph nor the telephone has been operated by the government, except during war. In neither case is anything tangible Beat by the offeree and received by the offeror. In the use of the telegraph the risks of error are also vastly greater than in the case of mail. Nevertheless if the assumption is sound that the offeror has impliedly assented to the starting of a telegram on its way, as the only necessary manifestation of acceptance, the result would be unquestionably right. The difficulty is because of the probability that such an assumption is based on a legal fiction. So far as the telegraph is concerned, however, the law is doubtless settled; but a contract by telephone presents quite as great an analogy to a contract made where the parties are orally addressing one another in each other's presence. It has not been suggested in the latter case that the offeror takes the risk of hearing an acceptance addressed to him. The contrary has been held.9 If then it is essential that the offeror shall hear what is said to him, or at least be guilty of some fault in not hearing, the time and place of the formation of the contract is not when and where the offeror speaks, but when and where the offeror hears, or ought to hear.10 speaking of the acceptor, not the hearing of the offeror which completes the contract See infra, |97. The following editorial comment is made in 75 Central L. J. 71, on the earlier Texas decision cited above:-
"The rule as to letters and telegrams is, we think, this way, and the court's conclusion is very probably correct. There seems, however, something more of assumption of fact than logic in arriving at this conclusion. Thus it is said the offer was received and accepted at the same place. Just as forcibly, however, it could be said the offer was made and accepted and the agreement consummated at the other place, and perhaps with more reason. If the voice of the acceptor had not reached or been properly heard by the offeror of the contract, would the agreement have been consummated? The acceptor knew the offeror was listening to hear and, in accepting, it was incumbent on him to make him hear. But he was to hear at the place of offer. Would not what the offeror heard be the contract, if it differed from what the other said?"
9See infra, 5 95.
10The New Swiss Federal Code of Obligations provides (Art. 4): Contracts concluded by telephone are regarded as made between parties present, if they or their agents have been personally in communication