§ 878.. ACTION BY RECEIVER. 663 mistake or neglect, the same rules apply as in other cases of breach of contract. If no damages are proved, nominal damages can be recovered, as the law infers some damage from the breach of contract. (*) $878. Action by receiver-Tort or contract.-It is generally held in the United States that an action may be brought by the person to whom the message is addressed. In Elwood v. The Western Union Telegraph Co.) the defendant delivered as genuine a message purporting to be from the officer of a bank, addressed to the plaintiff, saying that the bank would pay the checks of a third party to the amount of $20,000. The plaintiff paid $10,000, and the message was then discovered to be a forgery. In an action on the case the company was held liable to the plaintiff for the amount paid. In another case, () it was said that when there has been a delay or mistake in the transmission of a message, which has been productive of injury or damage to the person by whom, or for whom, the company was employed, "to that person they are responsible, whether he was the one who sent or the one who was to receive the message." The basis of the right of action is sometimes said to be tort, and sometimes contract. In the former case, the right would rest on the public duty to convey messages assumed by telegraph companies: in the latter upon the interest of the receiver in the contract made by the sender. As in the case of carriers, it will often be found difficult to say that the action sounds exclusively in either.(*) Perhaps the following considerations already (*) First Nat. Bk. of Barnesville v. Western U. T. Co., 30 Oh. St. 555 (1876). (o) 45 N. Y. 549. (c) De Rutte v. New York A. & B. Tel. Co., 1 Daly 547, 555. (4) Western U. Tel. Co. v. Hope, 11 Bradw. 289; Rose v. U. S. T. Co., 6 Robt. 305; New York & W. P. T. Co. v. Dryburg, 35 Pa. 298; Aiken v. adverted to, may throw some light on this point. Every contract made by a telegraph company is made in pursuance of a duty imposed upon it by the State, and any breach of it is not only a breach of contract, but a tort, for the duty assumed involves the performance of this contract, not merely as it affects the sending, but as it affects the delivering of messages. The telegraph company is under a duty to all the world, and a breach of its contract with the sender is a breach of this duty, as it affects the receiver. In Bank of Cal. v. W. U. Tel. Co.,(*) the receiver brought an action of tort for loss caused by paying money on a forged telegraphic order. The question was not discussed, but the sender could not have brought any action, as the forgery was committed by him, and he, personating a fictitious person named as payee in the order, collected the money.(*) $879. Compensation only for natural and contemplated consequences. In determining the telegraph company's liability, the question has usually been taken to be whether the information as to the nature of the dispatch, and of the possible consequences of a failure to deliver it correctly, has been so properly and fully given to the company, as to charge it, in case of its default, under the W. U. Tel. Co., 5 S. C. 358; and see, for an interesting discussion of the subject, Gray on Com. by Tel. ch. vii. In England, however, the telegraph company cannot be made liable for loss through neglect to send a message in an action by the sender. Playford v. United Kingdom Tel. Co., L. R. 4 Q. B. 706; Dickson v. Reuter's Tel. Co., 2 C. P. D. 62; 3 C. P. Div. 1. This is on the ground that the obligation of the carrier to use due care arises out of contract only, and that the contract is with the sender of such messages only, and not with the receiver. (*) 52 Cal. 280. () West. U. T. Co. v. Fenton, 52 Ind. 1, is a case in which it was held that the receiver could bring an action, but the decision was based on a statute. § 879. COMPENSATION. 665 rules in Hadley v. Baxendale, with the loss sustained. Where the company has no notice of the nature of the transaction, either from the message itself or from information given it at the time of sending the message, the damages have been held to be merely the cost of the message. Thus in Beaupré v. Pacific & Atlantic Telegraph Co.(*) the plaintiff sent a message, "Will take 200 extra mess," meaning he would take pork of that quantity and quality. The message was delayed. It was held that the plaintiff could not recover for a fall in the market, but only the cost of the message. In the case of Landsberger v. The Magnetic Telegraph Company,() the plaintiff at New Orleans having contracted with a third person to buy goods for him on commission at New York, and bound himself to fulfil the contract in a specified sum as liquidated damages, remitted funds to New York to be used in the agreed purchase, which he telegraphed his agent in New York to make. The dispatch directed the plaintiff's firm in New York to get from the Pacific Mail Company $10,000, which the plaintiff had remitted thither by that company, but did not indicate the particular purpose to which it was to be applied, in a manner intelligible to the telegraph company. Through the company's default, the message failed to reach New York in time to have the purchase made, so that the plaintiff lost his commissions and the use of his money for the time, and had to pay the stipulated damages. The court, intending to apply the rule in Hadley v. Baxendale and Griffin v. Colver, () held that he could recover only the cost of the dispatch and the interest of his money while it lay (*) 21 Minn. 155. idle. The loss of the commission and the payment of the liquidated damages were not regarded as having entered into the contemplation of the parties at the time the contract was made. In Lowery v. Western Union Telegraph Co.(*) A. delivered to the defendant a message directed to the plaintiff, asking for $500. By the defendant's negligence this was changed to $5,000. The plaintiff sent A. $5,000, who appropriated it and absconded. The plaintiff afterwards recovered part from A. It was held that the plaintiff could not recover his loss from the defendant, as it was not the natural and probable result of the defendant's negligence. In Baldwin v. The United States Telegraph Co.(1) damages for loss of a bargain were refused. The plaintiff had received an offer for his interest in an oil well. He telegraphed by defendant and a connecting company to an agent, inquiring how much the well was producing. At the time of sending the message he informed the operator of the connecting company that, unless he received an answer promptly he would sell his interest. The defendant negligently delayed the delivery of the message and the plaintiff accordingly sold his interest. Soon afterwards he received from his agent an offer of $1,200 more than the price for which he had sold it. It was held that this sum could not be recovered, as the purpose of the telegram was not known to the defendant, and the damages were not within the contemplation of the parties. In another case, by a mistake of the telegraph company, the plaintiff was informed that he could be furnished with 8,000 bushels of wheat for transportation from Chatham to Oswego. The dispatch should have stated 3,000 (*) 60 N. Y. 198. § 879. COMPENSATION. 667 bushels. In consequence of the wrong information, he gave up a contract for a cargo from Detroit, and sent his vessel to Chatham, where he obtained the 3,000 bushels only. It was held, that the only damages which would naturally flow from the defendant's default, or which could have been in the contemplation of both parties at the time of the delivery of the dispatch for transmission, was a reasonable compensation for sending the vessel to Chatham and back. The plaintiff was not entitled to freight on the five thousand bushels the vessel did not carry, as it did not appear that he could have obtained this freight if the message had been correctly transmitted. His real damage consisted in giving up his contract; and this he could not recover, because the fact of his having such a contract had not been communicated to the defendant.(*) In a case in Louisiana it appeared that the plaintiff's cane was frosted, and he telegraphed for sulphate of lime, by the use of which damage could be averted; no notice of the use to which it was intended. to put the sulphate of lime was given to the company. The message was not delivered, and the crop was lost. The damage was held too remote for compensation.() A.dispatch announcing that the plaintiff, as agent for A., had sold pork at a certain price, was not delivered, and when A. finally learned the facts he disaffirmed the sale, and the plaintiff was obliged to compensate the purchaser ; if the sale had been disaffirmed at once there would have been no loss. It was held that the company had no notice of the importance of the message, since it referred to a past transaction, and the plaintiff was limited to nominal damages. (*) (*) Lane v. Montreal T. Co., 7 Up. Can. C. P. 23. () Deslottes v. Baltimore & O. T. Co., 40 La. Ann. 183. |