Findlay v. Western Union Tel. Co.

• Decision Date: 23 May 1894
• Parties: FINDLAY v. WESTERN UNION TEL. CO.
• Court: U.S. District Court — Western District of Virginia

64 F. 459

FINDLAY v. WESTERN UNION TEL. CO.

United States Circuit Court, W.D. Virginia.

May 23, 1894

Fulkerson Page & Hurt, and D. Trigg, for plaintiff.

Scott &amp Staples, for defendant.

PAUL District Judge.

This is an action for damages against the defendant telegraph company for its failure to deliver to the plaintiff two dispatches sent to him by E. Y. Mitchell, curator, etc one of which dispatches was sent from St. Louis on September 17, 1891, and the other from Rolla, Mo., on September 29, 1891. These messages offered to the plaintiff the position of professor of chemistry in the School of Mines at Rolla, at a salary of $1,800. The declaration alleges that, by reason of the negligence of the defendant in not delivering promptly the said messages, the plaintiff was prevented from accepting and obtaining the position offered him, the same having been filled by another before the plaintiff could answer said telegrams and accept the offer made to him. The dispatches sent and delivered contained, among other provisions, this condition:

'The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.'

It is admitted that this requirement was not complied with; no notice of the claim being given within 60 days after the messages were filed with the company for transmission, or after their delivery to the plaintiff. All the evidence being introduced in the case, the defendant asked for the following instruction to the jury:

'The court instructs the jury that it was the duty of the plaintiff in this case to present in writing to the defendant company his claim for damages claimed under the declaration within sixty days from the date of filing of the messages from E. Y. Mitchell to the plaintiff; and, if they believe from the evidence that said claim was not presented in writing within sixty days from such date, they must find for the defendant.'

It is admitted by counsel for the plaintiff in the discussion that, according to the decisions of the courts, this rule is a reasonable one as to the sender of the message, and that it is binding upon him; but it is insisted that it is not binding on the sendee or receiver of the message. It is urged that the receiver of the message is not a party to the contract between the sender and the telegraph company. Counsel for the defendant insist that it is binding on both the sender and the receiver of the message, and that neither can recover in a suit with this condition in the contract of transmission. The declaration alleges in two or more counts that on the 17th day of September, 1891, and on the 19th day of September, 1891, one E. Y. Mitchell, a curator of the University of Missouri, delivered to the defendant a certain message or dispatch at his office in the town of Rolla, Mo., directed to and addressed to the plaintiff at Abingdon, Va., and contracted with the defendant to transmit and deliver the said dispatch or message to the plaintiff at Abington, Va., according to the provisions of law, and according to said contract, promptly and without delay. It further alleges:

'That said E. Y. Mitchell paid to the defendant * * * all

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