Strong v. Western Union Telegraph Co.

• Decision Date: 28 June 1910
• Parties: ELISHA STRONG et al., Appellants, v. WESTERN UNION TELEGRAPH CO., Respondent
• Court: Idaho Supreme Court

109 P. 910

18 Idaho 409

ELISHA STRONG et al., Appellants, v. WESTERN UNION TELEGRAPH CO., Respondent

Supreme Court of Idaho

June 28, 1910

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Reversed and remanded with direction. Costs awarded to appellant.

Thomas L. Glenn, for Appellants.

The court correctly ruled in its former opinion that the contract was made between the appellants and the livestock and commission company, by means of the telegrams, and not with White or through White as the agent of the livestock company, for the reason that the weight of authority favors the proposition that the telegraph company was the agent of the appellants in the delivery of the message to the livestock company; that the livestock company completed the contract so far as it was concerned by delivering to the respondent a message accepting the offer of appellants, the appellants thereupon complying with the terms of the message of acceptance; the idea of agency of White does not appear in any manner in either of the telegrams; the only evidence, if evidence at all, of such agency is the statement of witness Stark wherein he stated that White represented himself to be the agent of said company, and, if he was agent, he was certainly repudiated by both parties in their telegraphic correspondence. (Pepper v. W. U. Tel. Co., 87 Tenn. 554, 10 Am. St. 699, 11 S.W. 783, 4 L. R. A. 660, and cases cited; Bond v. Hurd, 31 Mont. 314, 78 P. 580, 3 Ann. Cas. 566; Thompson on Law of Electricity, sec. 496; Joyce on Electric Law, 2d ed., sec. 905; 10 Current Law, 1844.)

Clark & Budge, for Respondent.

The parties were never of the same mind concerning a material element of the contract, to wit, the price, and therefore there was no meeting of minds; therefore there was no contract as a result of the telegrams. Appellants were not bound to deliver the cattle at the price quoted in the telegram as delivered to the commission company, because they never agreed to sell at such a figure. They might have otherwise disposed of the cattle and obtained the highest possible price for them without regard to the telegrams, for the telegrams did not create or give rise to any obligation on the part of the appellants to sell to the commission company at any particular figure. (Pepper v. Western Union Tel. Co., 87 Tenn. 554, 10 Am. St. 699, 4 L. R. A. 660, 11 S.W. 783; Postal Telegraph Cable Co. v. Schaefer, 110 Ky. 907, 62 S.W. 1119; Shingleur v. Telegraph Co., 72 Miss. 1030, 48 Am. St. 604, 18 So. 425, 30 L. R. A. 444.)

The cases above cited, and also the case of Western Union Tel. Co. v. Dubois, 128 Ill. 248, 15 Am. St. 109, 21 N.E. 4, hold that the sender has an action based upon his contract with the telegraph company for the correct transmission of the message, or an action in tort when he has suffered because of an error, and they also hold that the sendee may sue in tort; but we cannot understand upon what theory appellants can hold the respondent liable for an error when they suffered no damage because of the error. In other words, the error did not affect the binding contract entered into between the appellants and the commission company through the agency of White.

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

A rehearing was granted in this case on that particular portion of the original opinion of the court which holds that "the contract was made directly with the commission company and not with White, and on that state of facts the commission company could not be compelled to pay a greater price than it had agreed to pay as per its reply telegram."

On the reargument of this case on the point submitted, the controversy has revolved about the legal proposition as to whether or not a telegraph company in receiving and sending a message acts as the agent of the sender. A determination of this question is necessary to a correct and proper understanding of the principle of law applicable in the determination of the case. We have made a very careful and somewhat extended examination both of the text-writers and the court decisions on this question, and emerge from the investigation fully convinced that the authorities are irreconcilable on the question. This confusion, it seems to us, has arisen out of the endeavor on the part of the courts to determine just what particular settled and established rule of law is applicable and should be invoked in dealing with an entirely new agency as applied in business and commerce. This is a difficulty which constantly confronts the courts. New inventions are constantly coming into use; new uses, both public and private, are coming into being; new methods and means of transacting and carrying on business are applied; and it is a problem fraught with many difficulties and embarrassments, as the books will readily disclose, for the courts to apply, in every instance, the correct principle of law so as to accomplish substantial justice to all concerned and at the same time promote the public interests involved.

In the early days of communication by telegraph when cases began to find their way into the English and Scotch courts, it was held by those courts that the law of agency did not apply, and that the company should not be treated as an agent of the sender of a message, but rather as an agency of the government. (Henkel v. Pape, 40 L. J. Exch. 15, L. R. 6 Exch. 7, 23 L. T. 419, 19 W.R. 106; Allen's Tel. Cases, 456; Verdin v. Robertson, 10 Ct. Sess. Cas. (3 Series) 35 (Scot. 1871); Allen's Tel. Cases, 697. To the same effect, see Playford v. Tel. Co., L. R. 4 Q. B. 706; S. C., Allen's Tel. Cas. 437; Dickson v. Tel. Co., 2 C. P. Div. 62; S. C., 3 C. P. Div. 1.) There the telegraph is under the control of the government and is operated in connection with the postoffice department (32 & 33 Vict., c. 73), and the cases were apparently decided on the theory that the government is not responsible for the negligence, errors or mistakes of its clerks and servants. In this country there seems to have been more or less diversity of opinion, some of the cases, and especially the early cases, proceeding upon the implied, if not express, theory that the company is the agent of the sender and that the law of agency is the rule of law to be applied in such cases.

Mr. Gray, in his work on Communication by Telegraph, written twenty-five years ago, at sec. 104 says: "While the employer of a telegraph company is responsible upon the words of a message as delivered, where they are the ones that he authorized, is he responsible upon them where, owing to the negligence of the company, they differ materially from the ones that he authorized? This question is answered in the negative in England and in Scotland. In this country, on the other hand, it is answered, as a general rule, in the affirmative.

"Courts have rarely considered at length the relationship between a telegraph company and its employer. The view that the employer of a telegraph company is responsible upon a negligently altered message has been rested, it seems, upon two different grounds: (1) A telegraph company is the agent of its employer; consequently, it renders the employer responsible upon any message which it delivers. (2) One who employs a telegraph company employs it to do a certain act,--to communicate a certain message; consequently, he is responsible for the torts of the company committed in the performance of that act. These grounds will now be considered separately and in order."

In a note to this section the author cites Durkee v. Vermont C. Rd. Co., 29 Vt. 127; Saveland v. Green, 40 Wis. 431; Wilson v. M. & N.W. R. Co., 31 Minn. 481, 18 N.W. 291, with the following comment on those cases: "These cases overlook, it seems, the fact that a telegraph company, in delivering an altered message, does an act beyond the scope both of the authority which the employer actually delegates to it, and of the authority that he holds it out as possessing."

Subsequent to the issuance of Gray's work and in 1891, Judge Seymour D. Thompson issued his work on the Law of Electricity, and in sec. 480 says: "In England and Scotland, the idea that the telegraph company is the agent of the sender to transmit his communication to the addressee, is repudiated." In sec. 481 he discusses and reviews the decision of the supreme court of Tennessee in Pepper v. Western Union T. Co., 87 Tenn. 554, 10 Am. St. 699, 11 S.W. 783, 4 L. R. A. 660, 25 Am. & Eng. Corp. Cas. 542, 2 Am. Elec. Cas. 756, and disapproves the holding which he calls "dictum" in that opinion, and in sec. 482 the author says: "It is obvious, however, that the foregoing principle cannot be of universal application. Many cases will arise where the material fact will be, not what was the message which was delivered, but what was the message which was received. The party who originally sends an order by telegraph makes the telegraph company his agent for its transmission and delivery, and, as between himself and the person to whom it is addressed, he is bound by the message as delivered. It follows that where the legal rights of the receiver of the message, founded upon an order transmitted therein, are in question, he is entitled to put in evidence the message actually received as the original."

Some seventeen years later, and in 1907, Joyce & Joyce issued the second edition of their work on Electric Law, and in sec. 905 review the conclusion reached by the different text-writers as follows: "Mr. Gray (Gray on Teleg., sec. 104, note 3) states the rule as holding nonagency of the telegraph company in England, and says that the rule here is contra, although he inclines to the English...