This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If the offeror makes an offer by telegram and his offer is transmitted incorrectly, a question arises as to whether he is bound by its acceptance in the altered form. Some courts hold that for this purpose the telegraph company is the agent of the offeror, and that he is bound by the offer as it is transmitted to the offeree.1 The question usually arises in an action by the offeror against the telegraph company for damages. If he is bound by the offer as accepted, he is allowed to
4 Cargill Commission Co. v. Mowery, 99 Kan. 389, 161 Ac. 634 [modified on rehearing 99 Kan. 389,162 Ac. 313].
5 Crescent Coal Co. v. Louisville & N. R. Co., 143 Ky. 73, 135 S. W. 768 [sub nomine: Higdon v. Louisville & N. R. Co., 33 L. R. A. (N.S.) 442].
6 Kelley v. Smith, 101 Wash. 475, 172 Ac. 542.
7 Floars v. Aetna L. Ins. Co., 144 N. Car. 232, 11 L R. A. (N.S.) 357, 56 S. E. 915.
8 Floars v. Aetna L. Ins. Co., 144 N. Car. 232, 11 L. R. A. (N.S.) 357, 56 S. £. 915.
1 Georgia. Western Union Telegraph Co. v. Shorter, 71 Ga. 760; Western certain quantity of a specified commodity, A is not bound by a mistake in transmission which increases the quantity; and if A reimburses B for the loss thus sustained, A's payment is voluntary and he can not recover the amount of such loss from the telegraph company.7 The offeror is not bound by a mistake in transmission as to the price.8 There is no contract if the offer is changed by mistake in transmitting a telegram from $1.70 to $1.07.9
Union Telegraph Co. v. Flint River Lumber Co., 114 Ga. 576, 88 Am. St. Rep. 36, 40 S. E. 815.
Illinois. Anheuser-Busch Brewing Co. v. Hutmacher, 127 111. 652, 4 L. R. A. 575, 21 N. E. 626.
Iowa. Younker v. Western Union Telegraph Co., 146 la. 499, 125 N. W. 577.
Maine. Ayer v. Western Union Telegraph Co., 79 Me. 493, 1 Am. St. Rep. 353, 10 Atl. 495.
Missouri. Haubelt v. Mill Co., 77 Mo. App. 672.
Wisconsin. Sherrerd v. Telegraph Co., 146 Wis. 197, 131 N. W. 341.
Where the original telegram must be recover if the telegraph company is negligent.2 Some courts have allowed the offeror to recover even if he might possibly have avoided the contract, holding that he was not bound to engage in "long and doubtful litigation" in attempting to rescind.3
In other jurisdictions, a person who communicates by telegraph is said to be bound by his offer in the form in which he sends it, and not in the form in which it is received.4 Where such theory exists the offeror is not allowed to recover from the telegraph company on the theory that he is not bound by the telegram as transmitted,5 especially if he discovers the mistake before performance.6 If A sends a telegram to his broker B, ordering B to purchase a produced in evidence to show the contents of the message, or whether the message as delivered may be offered in evidence depends on whether the message is to be regarded as sent at the risk of the sender or of the person to whom it is sent: Durkee v. Vermont Central R. R. Co., 29 Vt. 127; Savehtnd v. Green, 40 Wis. 431.
2 Western Union Telegraph Co. v. Shotter, 71 Ga. 760; Western Union Telegraph Co. v. Lumber Co.. 114 Ga. 576, 88 Am. St. Rep. 36, 40 S. E. 815; Reed v. Telegraph Co., 135 Mo. 661, 58 Am. St. Rep. 609, 34 L. R. A. 492, 37 S. W. 904; Rittenhouse v. Independent Line, 44 N. Y. 263, 4 Am. Rep. 673; Sherrerd v. Western Union Telegraph Co., 146 Wis. 197, 131 N. W. 341.
3 Hasbrouck v. Telegraph Co., 107 la. 160, 70 Am. St. Rep. 181, 77 N. W. 1034.
For a case in which the telegraph company was said to be the agent of the sender but the offeree was allowed to recover for damages due to a mistake in transmission, see New York & Washington Printing Telegraph Co v. Dryburg, 35 Pa. St. 298, 78 Am. Pec. 338.
4 England. Henkel v. Pape, L. R. 6 Exch. 7.
Scotland. Verdin v. Robertson, 10 MacPherson H. L. 35, 10 Scots Rev. Rep. (3d series) 107.
Canada. Frynn v. Kelly, 12 Ont. L. R. 440.
Idaho. Strong v. Western Union Teleg. Co., 18 Ida. 389, 409, 30 L. R. A. (N.S.) 409, 109 Ac. 910.
Kentucky. Postal Telegraph-Cable Co. v. Schaefer, 110 Ky. 907, 23 Ky. Law Rep. 344, 62 S. W. 1119.
South Carolina. Eureka Cotton Mills v. Western Union Telegraph Co., 88 S. Car. 498, Ann. Cas. 1912C, 1273, 70 S. E. 1040; Watson v. Paschall, 93 S. Car. 537, 77 S. E. 291.
Tennessee. Pepper v. Western Union Telegraph Co., 87 Tenn. 554, 10 Am. St. Rep. 699, 4 L. R. A. 660, 11 S. W. 783.
5 Strong v. Western Union Telegraph Co., 18 Ida. 389, 409, 30 L. R. A. (N.S.) 409, 109 Ac. 910; McKee v. Western Union Teleg. Co., 158 Ky. 143, 51 L. R. A. (N.S.) 439, 164 S. W. 348; Postal Telegraph Cable Co. v. Schaefer, 110 Ky. 907,23 Ky. Law Rep. 344, 62 S. W. 1119; Pegram v. Telegraph Co., 100 N. Car. 28, 6 Am. St. Rep. 557, 6 S. E. 770; Mt. Gilead Cotton Oil Co. v. Western Union Telegraph Co., 171 N. Car. 705, 89 S. E. 21; Pepper v. Western Union Telegraph Co., 87 Tenn. 554, 10 Am. St. Rep. 699, 4 L. R. A. 660, 11 S. W. 783.
6 McKee v. Western Union Telegraph Co., 158 Ky. 143, 51 L. R. A. (N.S.) 439, 164 S. W. 348.
If the mistake in transmission is discovered after acceptance but before any action in reliance upon such mistake, it has been said that no contract exists.10
If the mistake in transmitting a telegram is such that the offeree knows of such mistake, he can not, by accepting such offer, complete the contract so as to bind the offeror by the mistake in transmission.11 A broker sued to recover his commission for making an alleged sale of timber lands. The sale was made, if at all, by an offer from the broker on behalf of the purchaser, to which the vendor replied, "We accepted (the vendee's) offer." By mistake in transmission the word "accepted" was changed to "accept." If such telegram could refer to any prior transaction, the vendor would not be bound by it in its altered form and the broker would not be entitled to commissions.12