§ 981. The rights and liabilities of telegraph companies in contract arise only with those who send messages. It has, indeed, been suggested in one case 1 that such companies may be liable in contract to the person to whom a message is addressed, on the ground that the contract of transmission is or may be made for his benefit. But the answer to this is to be found in a recent important case,2 where it is stated that the general rule of law, as now understood, is that a third person cannot sue upon a contract made with others for his benefit; with some exceptions, of which this case does not appear to be one. Any liability to the receiver of a despatch which may arise is clearly one of tort.

§ 982. In some cases it has been suggested that the position of a telegraph company is analogous to that of a common carrier;3 but any such supposed analogy is apt to mislead. The telegraph company receive no property for transmission; and, as they are therefore subject to no temptation for theft, they are not held to the high responsibilities of common carriers. They are not insurers of the correct transmission of despatches.4 The contract of a telegraph company is simply to use due care and skill in sending the messages given them; but it is decided that this contract would be broken by a failure to deliver the precise message sent, in the absence of a rule requiring it to be repeated by the receiver, even in the face of a notice to the contrary, unless the error was caused by the condition of the atmosphere or by some other obstacle not the fault of the company.1 So, too, the contract is broken by an unreasonable delay, or by a failure to send a despatch in its proper order,2 or by a failure to transmit,3 the breach giving in all of these cases a right of action to the sender of the message.

1 De Rutte v. New York, Albany, etc. Tel. Co., 1 Daly, 547 (1866).

2 Exchange Bank v. Rice, 107 Mass. 37 (1871). .

3 Parks v. Alta Cal. Tel. Co., 13 Cal. 422; Leonard v. New York, Albany, etc. Tel. Co., 41 N. Y. 544 (1870); True v. International Tel. Co., 60Me. 9 (1872).

4 Western Union Tel. Co. v. Carew, 15 Mich. 525, 533 (1867); Play-ford v. United Kingdom Tel. Co., Law R. 4 Q. B. 706, 710 (1869); Breese v. United States Tel. Co., 48 N. Y. 132 (1871).

§ 983. A condition that the company shall not be liable to the sender of a despatch for a mistake in it, unless it shall be repeated by the receiver, is reasonable and valid, though referred to as among the conditions on the back of the blank used by the sender, and though it be not read.4 But it is held that a condition that the company shall not be responsible for mistakes or delays in transmitting despatches, applies merely to the transmission, and not to delays in delivering them.5 A condition that the defendants will not be responsible for mistakes occurring on other lines in despatches received by them (the defendants), and for the entire transmission of which they have been paid, is also valid.6 And the same is true of a condition that any claim against the company must be presented within sixty days after the transmission of a message.7

1 True v. International Tel. Co., 60 Me. 9 (1872). See United States Tel. Co. v. Gildersleve, 29 Md. 232 (1868); Playford v. United Kingdom Tel. Co., Law R. 4 Q. B. 706; 10 Best & S. 759; Western Union Tel. Co. v. Carew, 15 Mich. 525 (1867).

2 Davis v. Western Union Tel. Co., 1 Cincinnati Sup. Ct. Rep. 100 (1870).

3 Birney v. New York & Wash. Tel. Co., 18 Md. 341 (1862).

4 Breese v. United States Tel. Co., 48 N. Y. 132; Wolf v. Western Union Tel. Co., 62 Penn St. 83 (1869); Mac Andrew v. Electric Tel. Co., 17 Com. B. 3 (1855); Western Union Tel. Co. v. Carew, 15 Mich. 525 (1867); Camp p. Western Union Tel. Co., 1 Met. (Ky.) 164 (1858); Wann v. Western Union Tel. Co., 37 Mo. 472 (1866); Ellis v. American Tel. Co., 13 Allen, 226 (1866); United States Tel. Co. v. Gildersleve, 29 Md. 232 (1868). And perhaps though the company is declared by statute liable for all mistakes. Sweatland v. Illinois & Miss. Tel. Co., 27 Iowa, 433 (1869).

5 Bryant v. American Tel. Co., 1 Daly, 575 (1866); Graham v. Western Union Tel. Co., 10 Am. Law Reg. (n. s.) 319; 1 Colorado, 230, (1871).

6 Western Union Tel. Co. v. Carew, 15 Mich. 525.

7 Young v. Western Union Tel. Co., 34 N.Y. Superior Ct. 390 (1872).

§ 984. On the other hand, it is said that telegraph companies cannot shield themselves from negligence by a stipulation in their blanks that they will not be liable for mistakes or delay in transmitting messages, or for non-delivery.1 But this must be taken with caution; for, as an innocent mistake in reading and transmitting a despatch would ordinarily be a breach of the company's agreement, it would be evidence of negligence on their part to make even such a mistake.2 And we have already seen that the company can shield themselves from liability in such cases, by requiring that the despatch must be repeated if they would be held responsible in damages above the cost of the message. In a recent case just cited,3 it was held that where there was no requirement that the despatch should be repeated (a " night-message blank " having been used), a condition that the company should not be liable for mistakes, delays, or non-delivery was unreasonable and void; though it seems to have been conceded that if the words "unless the message shall be repeated," or words to this effect, had been added, the limitation would have been valid. The case, therefore, does not go to the extent of deciding that a telegraph company may not limit its liability to some extent, but only that it shall not throw off liability for all kinds of negligence. And this is probably true; e.g., it is stated in another case above cited,4 that a condition exempting a telegraph company from liability for mistakes in unrepeated messages, would not excuse them for employing defective instruments; and that if the mistake arose from such a cause the company would be liable.

§ 985. An offer made by telegraph, it is held, becomes binding, in case an answer by telegraph is authorized, as soon as the reply is handed to the telegraph operator; and this, too, though the message is not received by the person to whom it is directed, and though a revocation of the offer is attempted after the acceptance.1

1 True p. International Tel. Co., 60 Me. 9 (1872); Sweatland v. Illinois & Miss. Tel. Co., 27 Iowa, 433 (1869); United States Tel. Co. v. Gildersleve, 29 Md. 232 (1868).

2 See New York & Wash. Tel. Co. v. Dryburg, 35 Penn St. 298 (1860); Playford v. United Kingdom Tel. Co., Law R. 4 Q. B. 706.

3 True v. International Tel. Co., supra.

4 Sweatland v. Illinois & Miss. Tel. Co., supra.

§ 986. When, and to what extent, telegraphic despatches sent by parties to each other are to be treated as written contracts, within the rule excluding parol contemporaneous evidence, will depend upon the circumstances in which they are sent, and the intent and object for which they are transmitted and received.2 In the case just referred to, one M., under whom the defendants claimed, had applied to the plaintiffs for the use of a barge for receiving and storing goods; and the plaintiffs, having informed him that they would reply to his proposition by telegraph, afterwards sent a despatch in these words: "You may have barge 'Globe' for $400, until October 1; rent payable half 1st July and half 1st October." The barge was put to other purposes than those above mentioned, and sunk. In an action of trover, the defendants contended that the despatch was a complete contract, and that parol evidence was not admissible to show the previous understanding between M. and the plaintiffs; but the court overruled the objection, and allowed the evidence to be introduced.

§ 987. It is held in England that a telegraph company cannot be considered the agent of the sender of a despatch, erroneously transmitted; and that such a despatch, containing a proposal which is accepted by the person addressed, will not bind the sender.3 In this country, a telegraph company has been held liable to the receiver of an incorrect despatch, as agent of the sender.4

§ 988. A telegraphic message relating to a contract, the terms of which are not mentioned, is not a written contract within the Statute of Frauds; and the defect cannot be supplied by reference to a written instrument subsequently executed upon the same terms, but which is void for having been made on Sunday.1

1 Trevor v. Wood, 36 N. Y. 307 (1867).

2 Beach v. Raritan & Del. Bay R. Co., 37 N. Y. 457 (1868). It seems that a telegram is equivalent to a letter. Coupland v. Arrowsmith, 18 Law Times (n. s.), 755 (1868).

3 Henkel v. Pape, Law R. 6 Exch. 7 (1870). So in Scotland. Ver-din v. Robertson, 10 Ct. Sess. Cas. (3d series) 35 (1871).

4 New York & Wash. Tel. Co. v. Dryburg, 35 Penn. St. 298 (1860). Sed qucere. It would seem to be more correct to hold them liable as principals, for an agent is not liable to third persons for an innocent mistake made while acting on behalf of his principal. Story on Agency, § 308 et seq.; Lane v. Cotton, 12 Mod. 472, 488. See an article by the editor of this (5th) edition, 8 Am. Law Rev. 457.

§ 989. The rule in respect of the damages recoverable against a telegraph company for a breach of contract, depends upon the character of the message. If the significance of the despatch be not apparent, so that the company have no means of knowing that it involves any pecuniary or perhaps other very important transaction, the measure of damages will be the cost of transmission.2 But if the character of the despatch be apparent on its face, and there be no negligence on the part of the sender, he will be entitled to recover to the extent of his loss.3

1 Hazard v Day, 14 Allen, 487 (1867).

2 Baldwin v.. United States Tel. Co., 45 N. Y. 744 (1871); Allen's Tel. Cas. 613, and note, 653. 3Ib.