Jacob v. Western Union Tel. Co.

• Decision Date: 16 February 1904
• Citation: 135 Mich. 600,98 N.W. 402
• Court: Michigan Supreme Court
• Parties: JACOB v. WESTERN UNION TELEGRAPH CO.

98 N.W. 402

135 Mich. 600

JACOB v. WESTERN UNION TELEGRAPH CO.

Supreme Court of Michigan

February 16, 1904

Error to Circuit Court, Wayne County; Flavius L. Brooke, Judge.

Action by Abram Jacob against the Western Union Telegraph Company. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Bowen, Douglas, Whiting & Murfin, for appellant.

C. A Kent, for appellee.

MONTGOMERY J.

On the 10th of September, 1900, plaintiff wrote a broker in New York to buy him a car of lemons. On the 12th of the same month plaintiff desired to reduce this order, and so sent by defendant a telegram to buy only 60 boxes. This telegram was delivered in Detroit at a quarter before 8 or a quarter before 9 in the morning. The telegram was sent to the office of defendant by the messenger boy, who gave notice that plaintiff wished the message to be in New York by 11 a. m. The message was sent without delay to Buffalo, but was there delayed by a storm which interrupted communication with New York, so that it was not received in New York until after the time mentioned, and until the broker had bought the car load according to the letter of the 10th. The operator in Detroit knew nothing of this storm. There was a loss on these lemons, for which suit is brought. The telegram was on one of the usual telegraph blanks. The court left the case to the jury, and a verdict was returned for plaintiff. Defendant moved that the verdict be set aside and a verdict entered for defendant, under a stipulation that this might be done if the court changed his opinion. The court directed a verdict to be entered for defendant. There are several assignments of error, but all depend on the question whether or not the case was properly taken from the jury.

The verdict was rightly directed, unless the plaintiff can maintain one of three contentions: First. It is said that the plaintiff was not bound by the conditions printed upon the back of the telegram sent, as the blank used was a postal telegraph blank, and the regulations did not purport to be regulations of the defendant company. Second. It is said that there was a special contract to deliver the message in New York at 11 o'clock. Third. It is claimed that there was gross negligence in failing to notify the plaintiff that the wires were down east of Buffalo, so that the plaintiff might have sent his message by a different route. We pursue the order adopted by plaintiff's counsel in considering the questions raised.

1. Upon the face of the telegram sent appeared the following 'Send the following message without repeating subject to the terms and conditions printed on the back hereof which are agreed to.' It is immaterial by whom these regulations were made. It is clear that they were agreed to. To say that they were not is in effect to say that no request was made to defendant company to send this telegram at all, because it was written on a blank of the postal company. The rights of the respective parties must therefore be determined by the rule laid down in Birkett v. Telegraph Company, 103 Mich. 361, 61 N.W. 645, 33 L. R. A. 404, 50 Am. St. Rep. 374.

2. As to the plaintiff's contention that there was a special contract, we think that if we leave aside any question of authority of the agent to enter into such a contract as claimed the...