FINDLA Y ,II. WESTERN UNION TEL; CO.
adequate notice couldpO$sibly have been given. 'In Nesbit v. Inde· pendent District, 144U. S. 610, 12 Sup. Ot. 746, bonds had been is. sued by the municipal corporation in excess of the limitation imposed by the constitution of the state. The bonds were held to be void for lack of power. The question whether the power to issue such bonds at all was exhausted, and no longer existing, involved the in· quiry whether the limited amount had already been reached; and it was held, in the absence of nn express recital of the number of bonds which had been issued, that the purchaser was bound to refer to the public records, which disclosed the fact of the overissue, and that he was affected by notice of the facts he could thus have ascer· tained. In that case the question was the primary one of the ex· istence of authority, and not one of irregularity in the exercise of a power confessedly existing,and it belongs to that class of cases where it has been held that no recital implying the existence of the power could supply the lack of it. The case of Sutliff v. Lake Oounty Com'rs, 1471:J. S. 230, 13 Sup. Ot. 318, was a case of the same char· acter. The bonds in suit were part of au issue in excess of the limitation prescribed by the constitution of the state, and, as the public records to which the purchaser had access disclosed the lack of power, he was held bound by the facts disclosed by them, notwithstanding the recital in the bonds that they were issued in conformity with the statute. That case is distinguishable upon the same ground as in the last case above referred to. We are of opinion that, upon the facts found, the common council had complete authority to issue such bonds as these in suit, and that the defendant is estopped from setting up the fraudulent conduct of its own officials in the issue of them by the assurances con· tained in their recitals that they were issued in pursuance of the statute authorizing them. The judgment must be reversed, and the cause remanded to the court below, with directions to enter judgment for the plaintiff for the amount of the bonds and coupons in suit, with interest at the rate therein specified.
FINDLAY v. WESTERN UNION TEL. CO.
(Circuit Court, W. D. Virginia.
May 23, 1894.)
TEI,EGRAPH COMPANIES-FAILURE TO TRANSMIT MESSAGE.
The receiver of a message, as well as the sender, is bound by a condition in the contract requiring claims for damages to be presented to the telegraph company within 60 days after the day the message is filed for transmission.
This was an action by O. R. L. Findlay against the Western Union Telegraph Company to recover damages for failure to deliver tele· graphic messages to him. Fulkerson, Page & Hurt, and D. Trigg, for plaintiff. Scott & 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
tWb,rdispatches, sent to him by E. Y. Mitchell, curator, etc., one of was sent,fromSt.Loms on September 17, 1891, and the other 100m Rolla, Mo., on September 19, 1891. These messages offered toth.a:plaintiff the position of professor of chemistry in the School Of Mines'at Rolla, at a salary of $1,800. The declaration alleges that,ibY;reRson of the negligence of the defendant in not deliver· ing J ,pl'emptly ,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 ahawer said telegrams and aocept the offer made to him. The dispatches sent and delivered, contained, among other provisions, this condition:
"The' company will not be liable for d8.mages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message" is filed witb 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 filedl}":Jilh the company for transmission, or after their delivery to the plaJntiff. A.ll the evidence being introduced in the case, the defendaIitasked for the following instruction to the jury:
"The court iD,Eltructs the jury that it was the duty of the plaintiff in this case to ,'in' writing to the defendant company his claim for damages olaimed under the declaration within siXty days from the date of filing ()f 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 frolp 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 thatit 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 dclaration 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 with the defendant to transmit and deliver the dispatcll or,message to the plaintiff at Abingdon, Va., according to the provisions of law, and according to said contract, promptly and without delay. It further alleges: '''rhltt said E. "£:. l\fitchell,pald to the defendant * · · all the costs and
It demanded for the transmission and delivery of said dispatch or message, accordmg to its regulations, and according to the contract of transmission and delivery 'of said dispatcbor message as undertaken by it. as hereinbefore set forth; * *' * and that the defendant failed * * to deliver the dispatch promptly without delay, as it was its duty to do unqer its ,aforesaid contract; and that its .fMlure to deliver to him the said messagear"dispa'liehpromptly, as Was.Its ,duty and obligation to do, was caused by tW:negltgence of thedefendant,ooti)pany, its agent," etc.
FINDLAY 'l1. WESTERN UNION TEL. CO.
The plaintiff thus claims the benefit of this contract of transmission, and avers that he has been damaged by a breach of it; claims the benefit of its obligations; makes himself a party to its provisions, placing himself in this relation to it, and demanding a strict enforcement of his own rights under it. It cannot be successfully contended that he is exempt from the operation of certain provisions of the contract, to be complied with on his part before he can successfully assert his rights to the benefits accruing under it, or a redress of wrongs growing out of its violation. The contract is an agreement between the sender and the telegraph company that, for a stipulated price, the company shall carry a message from the sender, and deliver the same to the receiver. It is the same contract when delivered to the receiver that it was when it came from the hands of the sender. He takes it with all the rights that accrued to the sender, and he assumes all the obligations that it imposes on the sender when he comes to assert his rights under it. In the limited time at the disposal of the court since adjournment yesterday evening, it has not had time to make many extracts from the authorities cited sustaining this position. It refers to Thompson -on Negligence (page 847), where it is held that "the receiver of the message is privy to the contract between the sender and the telegraph company." Again: "It seems reasonable that, for all purposes of liability, the telegraph company shall be considered as much the agent of him who receives as of ,him who sends the message." Sherrill v. W. U. Tel. Co. (N. C.) 14 S. E. 94, is a case in which it is held that the restriction under discussion applied to the receiver of a message. W. U. Tel. Co. v. Dougherty (Ark.) 15 S. W. 468; Express Co. v. Caldwell, 21 Wall. 264. The foregoing authorities, as well as others that might be cited, sustain the position of counsel for defendant that the limitation of 60 pays within which a claim must be filed in writing applies as well to the receiver as to the sender of a message. The court, on principle, can arrive at no other conclusion than that the reasons for the existence and enforcement of the rule against the sender are the same, and equally strong for the enforcement of the same against the receiver. Waiver: But it is claimed that the defendant company waived its rights to the enforcement of this rule in the correspondence had between its attorney and the attorneys for the plaintiff. The court cannot agree with this position. So far from waiving this requirement, the first letter received from the attorney for the defendant company insists on its enforcement. Its language is:
"I would call your attention to the printed notice on this company's blanks requiring that all claims for damages be presented in writing within sixty days from the sending of the message. :Mr. Findlay has entirely failed in the matter of such requirement, which has, uniformly been held by the courts .a good and sufficient defense to an action in damages."
Conclusion: That the condition requiring notice of claim for damages to be given to the company within 60 days is binding upon the receiver, as well as the sender of the message. The instruction asked ,for by the defendant embodies the law, and will be given to the jury.
,the views 'oftJie oqurt, given for:the defendant, and must be
TREADWELL GOLD MIN; CO.·: WHELAN.
NInth Cll'CUIt. October 2, 1894.)
(Circuit Court of L
In, pel'sonalinjurles it ltPpeared that plalntltr was one of employed ill defendant's mIne to break up rock ill the' or«fplt, trom wblch the'broken rock'wasdrawn, from'1lime to time, a lower level, at whIch the chutes wer" Closed by !:Illd ,a ,geJ1eral, manager,llnd. ,a supl¥'IJ1teIldent in charge of. several'\'V0rks belonging to It, and the.gaIlg to WhIch plaintitrl.leli:Higed'worked'tIti'der the dIrection of one F.,' It!'s 'bass, whose duties were to see that th,e men dId their work, to dlreetthem where to' 19: IWt.fy them. rock was to be drawn, tbrolJl;'h ;(he chutes, and be drawI!'t;hroughany chute. ThereiWMll, as to whether F. was authorized to emmen under him. Plalntil't; who! was at work ploy and ontheJtQpofla pUe ofl'oCkteovering the head of a chute, was injured by beIng .dtIUf,Il ,tl:1rpughtbechut,e with the rock. There wlUl, a,conflict O'f ()n the occasIon In q1,Iestlon, F.notU1e<l plaintitr thatth' (lhute to 'be prawn. Held,that it was properly lE1ft to the , or not F. was atelIow' sen'antof plaintitr. 2. The' queilitionof plaint:ll't's contributory neglIgence wall also properly left to. the jury. An to the jury to the etreet that if defendant, by a .standing rule' anyone to notify the men working about the chutes when a chute wall to be drawn, ,plaint:i.tr.' could not recover; unless defendan,t, W41ll glJIlty. of gro$il negligence ,Ill 'employing unsUitl'ble persons, was the of. suc'!1Instruction $gnered: the duty defendant owed to plalntl1;1', ,and the last branch Intro(luced an Issue not made by' ilie' pleadings; , but'such error was harmless to defendant.
'.',. " ," " " "
FOR JURY. ," '
4. SAME-GROss .AND SLIGFrT"NEGtIGENCE. Where reqhested the court to charge that plalntil't could not recover if the jury fOlln,d that bis injurIes were in any manner the result of wllnt of ordinary care on his It was not error for the court to modIfy such InstructIon by adding: "Unless the defendant was glJUty of gross negligence, and the plaintiff's negligence was silght."
In Errol'to District.CQurt of the United States for the District of Alaska. Action by Patrick Whelan against the Alaska Treadwell Gold Mining OolIlpany. Plaintill' recovered judgment, and defendant ' brings error. T. z. for plldntiff in error. Lorenzo S.' n. S'awyer, fQ1' error. ': I;Wd GILBERT, an4"IIA
.' Judge. o.Mion foririjUries'received bythe negligence of the defendant (plaintill' in