Weld v. Postal Tel. Cable Co.
| Decision Date | 30 December 1913 |
| Parties | WELD et al. v. POSTAL TELEGRAPH CABLE CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Stephen M. Weld and another against the Postal Telegraph Cable Company. From a judgment of the Appellate Division (148 App. Div. 588,133 N. Y. Supp. 228), affirming a judgment for plaintiffs, defendant appeals. Reversed.
Plaintiffs, as copartners, under the name and style of Stephen M. Weld & Co., were engaged in the business of cotton brokers in the city of New York, and are members of the New York Cotton Exchange. On December 4, 1905, and for some time prior thereto, the defendant maintained a special office for the transaction of its business as a telegraph company in the building occupied by the Cotton Exchange in the city of New York and a similar office in the New Orleans Cotton Exchange. Communications between these two exchanges were carried on by means of two direct duplex wires known as ‘A’ and ‘B.’ December 4, 1905, Edward M. Weld, one of the plaintiffs, delivered to defendant at its office in the New York Cotton Exchange a message for transmission to New Orleans, written upon one of the blanks furnished by defendant, of which the following is a copy:
‘Send the following message, without repeating, subject to the terms and conditions printed on the back hereof, which are hereby agreed to.
‘Dec. 4. 1905.
‘To Ellis N. O.
‘Sell 20 thousand Mch 12.70
‘Weld.’
Upon the reverse side, amongst the stipulations, was the following:
‘The Postal Telegraph-Cable Company (incorporated) transmits and delivers the within message subject to the following terms and conditions:
* * *
‘Correctness in the transmission of messages to any point on the lines of the company can be insured by contract in writing, stating agreed amount of risk and payment of premium thereon, at the following rates, in addition to the usual charge for repeated messages, viz.: one per cent. for any distance not exceeding 1,000 miles and two per cent. for any greater distance . * * *’
The message was not ordered by Mr. Weld to be repeated. The tariff for forwarding the same, 60 cents, was paid by the plaintiffs. It is conceded that the message as delivered to defendant's operator was intended to instruct Ellis & Co., plaintiffs' brokers, in New Orleans to sell 20,000 bales of cotton at $0.1270 cents per pound for delivery in March.
The original message read in evidence contained certain words and figures which were not placed thereon by Mr. Weld, to wit: Under the words ‘Time Filed’ was placed ‘1:39 p. m.’ indicating the hour (New York time) the message was sent. Under the word ‘Check’ appeared ‘9-60’ representing the number of words (each figure counting as a word) and the amount paid for the transmission of the message, 60 cents.
The message as delivered read as follows:
+-----------------------------------------------+
¦‘Number ¦Sent by ¦Rec'd by¦Check¦
+--------------------+-----------+--------+-----¦
¦b 84 Kx ¦ ¦Kx ¦8 ¦
+--------------------+-----------+--------------¦
¦‘Dated Kx. New York.¦Dec. 1905 ¦Received at ¦
+--------------------+-----------+--------------¦
¦ ¦ ¦ ¦1244 ¦
+--------------------+-----------+--------+-----¦
¦(Where any reply ¦ ¦ ¦ ¦
+--------------------+-----------+--------+-----¦
¦should be sent) ¦ ¦ ¦ ¦
+--------------------+-----------+--------+-----¦
¦190 ¦ ¦ ¦ ¦
+--------------------+-----------+--------+-----¦
¦‘To Ellis ¦ ¦ ¦ ¦
+--------------------------------+--------+-----¦
¦‘Sell twenty thousand ¦ ¦ ¦
+--------------------------------+--------+-----¦
¦ ¦‘March 1207¦ ¦ ¦
+--------------------+-----------+--------+-----¦
¦ ¦ ¦”Well” ¦ ¦
+-----------------------------------------------+
One Henican, the board member of the firm of Ellis & Co., received the message at 12:43 3/4 New Orleans time, or 1:43 3/4 New York time, 4 3/4 minutes after the message was marked as having been sent, and understood from the same that he was to sell for the account of the plaintiffs 20,000 bales of cotton for delivery in March at the prevailing market prices not under 12.07. He was not misled by the signature ‘Well’ instead of ‘Weld.’ The mark ‘b 84’ indicated that the message was the eighty-fourth message sent on the B wire that day. The blank under the printed words ‘Sent by’ was used for the sending operator's signal, and it was the duty of the receiving operator to fill in that blank. The mark ‘Kx’ under the printed words ‘Rec'd by’ signified the receiving operator's wire signal. The figure ‘8’ under the word ‘Check’ represents the number of words in the message. The figures ‘1244’ under the words ‘Received at’ designate the time the telegram was received. After the printed word ‘Dated’ occur the words in red stamp. The words mean that the message originated in the Cotton Exchange office in New York. The receiving operator in New Orleans made manifold copies of all telegram orders received in the Cotton Exchange office. A carbon sheet was placed between two blanks and the message written, the original delivered to the party addressed and the carbon copy retained for filing in the office.
A manifold copy of the message was produced on the trial, and the following is a copy of the same:
+------------------------------------------------+
¦ ¦ ¦ ¦‘Del. No¦
+-------------------+-------+-----------+--------¦
¦ ¦ ¦ ¦390 ¦
+-------------------+-------+-----------+--------¦
¦‘Number ¦Sent by¦Rec'd by ¦Check ¦
+-------------------+-------+-----------+--------¦
¦‘B 84 Kx ¦ ¦Kx ¦ ¦
+-------------------+-------+-----------+--------¦
¦‘Kx New York. ¦ ¦ ¦ ¦
+-------------------+-------+-----------+--------¦
¦‘Dated Dec. 4, 1905¦ ¦Received at¦ ¦
+-------------------+-------+-----------+--------¦
¦ ¦ ¦1244 P ¦ ¦
+------------------------------------------------¦
¦‘(Where any reply should be sent) ¦
+------------------------------------------------¦
¦‘To Ellis ¦ ¦ ¦ ¦
+------------------------------------------------¦
¦‘Sell twenty thousand March 1207 ¦
+------------------------------------------------¦
¦ ¦ ¦”Well” ¦ ¦
+------------------------------------------------+
The carbon copy varied from the original in that the figure ‘4’ followed the word ‘Dec’ and the figure ‘60’ followed the figure ‘8’ under the word ‘Check.’ The words ‘Del No 390’ were added. The letter 'P' followed the figures ‘1244.’ The letters and figures ‘Dec_____05’ on the original and copy were stamped on the blanks each morning for the purpose of saving time. The figures ‘60’ indicated the price of transmission of the message. It was not the duty of the receiving operator to place the figures ‘60’ on the message as delivered; they were placed there for the purpose of audit and accounting. The letter ‘P’ was an abbreviation for afternoon, showing receipt of the message at 12:44 p. m. Under the printed words ‘Sent by’ appears a blank which was used for the sending operator's signal . This blank was not filled due to a general order in force in December, 1905, which provided the same should be omitted.
December 4, 1905, was known as ‘Bureau Day,’ when in government published an annual report in regard to the prospective cotton crop. The publication of such report results in activity and fluctuations in the market. On the day in question a large volume of business was transacted on the Exchange. Wire A had been in general use down near to the time when the telegram in controversy was presented. Wire B was used for the overflow business and when wire A was interrupted. The message was transmitted on wire B.
Mr. Weld first sought to have an oral message sent by defendant to Ellis & Co., to but the manager declined to send the same, saying ‘No, that is too big.’ Thereupon the message referred to was written and the time ‘1:39’ placed thereon. The sending operator had knowledge of a refusal to send the oral message, and wired the operator at New Orleans, ‘Here comes a big order;’ it being greater than any theretofore sent by him. He received the written message from Mr. Weld, and asserted upon the trial that he transmitted the same as written. The operator at New Orleans asked him on the wire ‘if that was ‘twenty’-that is, the ‘20’-I replied that it was ‘twenty,’ spelling the word out.'
Wire B ran directly through the office of the defendant at New Orleans, where, as claimed by the plaintiffs, it passed through a machine known as a Morsegraph, from which it continued...
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