Lewis v. Western Union Telegraph Co.
| Decision Date | 03 December 1895 |
| Citation | 23 S.E. 319,117 N.C. 436 |
| Parties | LEWIS v. WESTERN UNION TEL. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Forsyth county; Battle, Judge.
Action by N. A. Lewis against the Western Union Telegraph Company to recover damages for delay in sending and delivering a telegram. From a judgment for defendant, plaintiff appeals. Affirmed.
Where no written notice was given defendant of plaintiff's claim for delay in delivery within 60 days after the telegram was sent, and plaintiff's evidence shows a contract with defendant that no action for damages by defendant's negligence could be maintained "where the claim is not presented in writing within 60 days after the message is filed with the company for transmission," plaintiff cannot recover.
Glenn & Manly, for plaintiff.
R. C Strong and Watson & Buxton, for defendant.
This case turns on one point. The action was not commenced, nor was there any written notice given the defendant of plaintiff's claim, for more than 60 days from the time when the telegram was sent or when it was received. On the argument before us it was stated by counsel that the sender made no contract with the defendant to give notice of any claim for damage against defendant, on account of negligence within 60 days, as a condition necessary to plaintiffs right of action, and that the condition, contained in the printed matter on the paper containing the message delivered to the plaintiff, was not the contract, and did not bind the plaintiff. Upon this state of facts we were prepared to agree with plaintiff that the notice on the message delivered to plaintiff was not the contract, and that plaintiff was not thereby restricted to 60 days in which he must commence his action, and was only limited by the statute of limitations. As a matter of fact, what was stated by plaintiff's counsel as to the condition upon which this message was sent from the defendant's office in Virginia may be true. But as a court of appeals, we are confined to the record, and upon an examination of this we fail to see any statement sustaining this statement, while, on the other hand, we find in the statement of the case on appeal, the following statement: "The plaintiff introduced the following evidence, to wit, a telegram from J. F. Lewis to N. A. Lewis plaintiff, a copy of which is hereto attached as Exhibit No. 2." Exhibit No. 2, after stating many other conditions,...
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