being servants of the public. It is clear, however, that in this the court are not to be considered as using the term "agent" in any exact legal sense, for none of the elements of an agency are here present. What was meant was doubtless this: that, being created for the convenience and benefit of the public, they owe peculiar duties to the same, duties resembling, to use the illustration of the court, those of common carriers.

An analogy to such cases has often been suggested, though not perhaps for the purpose of showing a liability on the part of the telegraph company for non-delivery.

It will not be difficult to show that there is no proper analogy between the two cases. It may be doubted if, in the absence of statute, a telegraph company would be bound even to transmit messages for everybody. It is not clear that the doctrine concerning common carriers would prevail. The carrier's liability for refusing to receive and transmit goods was, at common law, alleged to arise from the ancient custom of the realm. Jackson v. Rogers, 2 Show. 327; Elsee v. Gatward, 5 T. R. 143, 150, Ashhurst, J. But the case is much stronger against the person to whom a despatch is addressed. The ground of the carrier's liability for a failure to deliver does not exist in the case of a telegraph company. The sender of a despatch puts no property into the hands of the company, and there is, therefore, no opportunity for theft, or occasion for collusion.

Nor does it follow by the fact that telegraph companies hold themselves out to the world as undertaking to transmit and deliver messages faithfully, that they render themselves liable to those to whom messages are

addressed for a breach of their duty of delivery. Their situation may be compared to that of a private messenger. It is clear that such a person, while undertaking for but a few people, is under no liability to parties to whom messages are sent for a failure to deliver; and can the case be different if the messenger should hold himself out to all persons as engaged in the business of carrying despatches? The mere fact that he has taken upon himself a wider duty as to the number of persons for whom he will act in transmitting messages cannot generate a duty as to those to whom they are directed.

Now, the only difference between such a case and that of the telegraph company is this: that the latter are incorporated; that they employ a servant at each end of the line for the transmission and reception of the message; and that the message is sent with great celerity by means of electricity; but these facts cannot be important.

Let us now turn to the statutes and see if any liability has been imposed by the legislature upon telegraph companies in this respect.

The English telegraph act provides that "the use of any telegraph and apparatus erected or formed under the provisions of this act for the purpose of receiving and sending messages shall ... be open for the sending and receiving of messages by all persons alike, without favor or preference." See Playford v. United Kingdom Tel. Co., Law R. 4 Q. B. 707, note. In Playford v. United Kingdom Tel. Co., just cited, it was held, in an action by the receiver of an erroneous message, that this act had not affected the relation of companies to those to whom despatches are transmitted. The telegraph act of 1868 contains no provision on this point; and

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The statute of Pennsylvania simply requires the companies to transmit despatches offered, under a penalty for refusal, with no provision for faithful performance. Bright. Purd. p. 951, § 1. In Maine, it is provided that "for any error or unnecessary delay in writing out, transmitting, or delivering a despatch... making it less valuable to the person interested therein," the company shall be liable for the whole amount paid on such despatch; and they shall transmit all despatches in the order they are received, under a penalty of one hundred dollars, to be recovered with cost by the person whose despatch is wilfully postponed." Rev. Sts. c. 53, § 1. Many of the States are without statutory provisions on this particular point; and no act has been found giving a right of action to the person to whom the message is sent, either for non-delivery

or for error in transmission, excepting that of Maine above quoted. It must be conceded that in that State the receiver of the message, if he be "the person interested therein," has a right of action to the amount paid for transmission. But this would perhaps cover no more than the case of a despatch transmitted by the plaintiff's agent; and, if so, it possibly abridges rather than enlarges the liability of the telegraph company. For, apart from such a provision, the company must be liable for the actual loss to the plaintiff, where the sender acts as agent in the premises. But this discussion is not predicated of such cases.

The other question whether the receiver of a message can sue the telegraph company for an error in transmission, and upon what ground — is not so free from difficulty. In this country there is great unanimity in holding the companies liable. New York & Washington Tel. Co. v. Dryburg, 35 Penn. St. 298; Bowen v. Lake Erie Tel. Co., 1 Am. Law Reg. 685; De Rutte v. New York, Albany, &c., Tel. Co., 1 Daly, 547; Rose v. United States Tel. Co., 3 Abb. Pr. N. s. 408; Elwood v. Western Union Tel. Co., 45 N. Y. 549; Ellis v. Am. Tel. Co., 13 Allen, 226. In England, as we have seen, the contrary is held. Playford v. United Kingdom Tel. Co., Law R. 4 Q. B. 706; 10 B. & S. 759.

In the New York & Washington Tel. Co. v. Dryburg, generally cited as the leading American case, one LeRoy transmitted to the plaintiff, by the defendants' line of telegraph, an order for a number of "hand bouquets." The operator, reading "hund" for "hand," supposed that the word had been abbreviated for "hundred," and transmitted the message accordingly. The

plaintiff acted upon the message as delivered, and, upon learning of the mistake, brought an action against the telegraph company to recover for the loss incurred. The action, as has been stated, was sustained, two grounds being given: first, that, being servants of the public, the defendants were to be regarded as agents of the plaintiff as well as of LeRoy, the sender of the despatch; secondly, that, being agents of LeRoy at all events, they were liable to third persons for their misfeasances, and that the alteration of the message by the operator, though made in good faith as it appears, was an act of that character, imputable to the company. "If the handwriting," say the court further, was so bad that he [the operator] could not read it correctly, he should not have undertaken to transmit it; but, the business of transmission as sumed, it was very plainly his duty to send what was written."

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In Bowen v. Lake Erie Tel. Co., 1 Am. Law Reg. 685, a similar case at nisi prius, the court charged the jury that telegraph companies, holding themselves out to transmit despatches correctly, are under obligation to do so, unless prevented by causes over which they have no control.

In De Rutte v. New York, Albany, &c., Tel. Co., 1 Daly, 547, in the Common Pleas of New York city, the plaintiff's agent in Bordeaux prepared a telegram and sent it in a letter to a house in New York, with instructions to send it in the quickest manner to the plaintiff at San Francisco. The New York house gave the message to the defendants, and paid the full cost of transmission to California. On reaching its destination, the message contained several errors, some of which were apparent, but one of which misled

the plaintiff, and caused the loss for which the suit was brought. The court held that the case was not changed by reason of the fact that the despatch passed over several lines, and that it was not proof of negligence on the part of the plaintiff that he had acted upon the despatch (while knowing that it contained errors) without having it repeated; and the plaintiff was allowed to recover. One objection taken by the defendants was this: that they had entered into no contract with the plaintiff concerning the message. But the court replied that it did not necessarily follow that the contract was made with the person sending the message. He might have no interest in the subjectmatter of it. The party to whom it is addressed may be the only one interested in its correct transmission; and when that is the case, he is the one with whom in reality the contract is made. It was further said, that the case was somewhat analogous to that of a loss of goods by a carrier, as to which the rule of law is, that the right of action against the carrier is in the consignee. But the defendants were also liable, the court held, regardless of this matter of contract, on the ground that they had put the plaintiff to a loss by their negligence.

Opposed to these American cases stands the case of Playford v. United Kingdom Tel. Co., Law R. 4 Q. B. 706, 10 B. & S. 759, in the Queen's Bench of England. The court there held an action not maintainable by the receiver of an unrepeated message, on the ground that the obligation of the company to use due care and skill in the transmission of messages arises entirely out of contract; and that the contract having been made with the sender of the message, the plaintiff had no right of action

against the company. This point has been sufficiently considered already.

It may not be difficult to find objection to the leading ground of the company's liability taken in De Rutte v. New York, Albany, &c., Tel. Co.; that the contract for the proper transmission of the message being in reality for the benefit of the receiver, he had a right of action for the admitted breach. The reply to this position is to be found in the rule established in the very important case of the Exchange Bank v. Rice, 107 Mass. 37. "The general rule of law," says Mr. Justice Gray, in delivering the judgment of the court, "is, that a person who is not a party to a simple contract, and from whom no consideration moves, cannot sue on the contract, and consequently that a promise made by one person to another for the benefit of a third person, who is a stranger to the consideration, will not support an action by the latter." The court herein overrule certain unguarded expressions in Carnegie v. Morrison, 2 Met. 381, and in Brewer v. Dyer, 7 Cush. 337, and bring the law back to a more secure anchorage. Nor does De Rutte v. New York, Albany, &c., Tel. Co. come within any of the exceptions to this rule, unless (upon the supposition that the transmission of a message is, or is analogous to, a bailment of goods, as has sometimes been supposed: Scott & Jarnagin, Telegraphs, §§ 95, 97; Parks v. Alta Californian Tel. Co., 13 Cal. 422; Leonard v. New York, Albany, &c., Tel. Co., 41 N. Y. 544; True v. International Tel. Co., 60 Maine, 9) it is embraced within the first and most important exception. This includes cases where the defendant, receiving money or property from another, which in equity and good conscience belongs to the plain

tiff, promises the party from whom he receives it to account for it to the plaintiff. Now, any supposed analogy between such a case and that of the receipt of a telegraphic message, with a promise to deliver to the plaintiff, as has often been pointed out (see Western Union Tel. Co. v. Carew, 15 Mich. 525, 533; Playford v. United Kingdom Tel. Co., Law R. 4 Q. B. 706, 710; Breese v. United States Tel. Co., 48 N. Y. 132), will not bear examination. It is doubtful even if a letter to be delivered under similar circumstances would come within the exception; for a letter can hardly be considered as property, and the tendency of the courts is to narrow, and not to extend, the rule on this point. But, however this may be, it is almost useless to say that a telegraphic company does not undertake to transmit, physically, the piece of paper received, or to account for it as property; the agreement is simply to use due care and skill to translate the writing into telegraphy, to send the proper symbols over the line, and then to retranslate and deliver the message. This is any thing but a receipt of money or property upon a promise to pay it to the plaintiff.

The above case would, however, be correct where the sender of the message were in fact only the agent of the plaintiff.

In the New York & Washington Tel. Co. v. Dryburg, the Supreme Court, as has been observed, took the position that the company were to be regarded as the agents of the sender of the message; and they were held liable as such, on the ground that they had been guilty of a misfeasance.

Before proceeding to consider the real nature of the relation of the telegraph company to the sender of a mes

In most, if not all, of the cases to which we have referred, the telegraph company had limited their liability for mistakes (above the sum paid for the message) to cases in which the despatch had been repeated by the receiver. Such a limitation was held reasonable in Ellis v. American Tel. Co., 13 Allen, 226. (So in Breese v. United States Tel. Co., 48 N. Y. 132. But see True v. International Tel. Co., 60 Maine, 9, holding such a limitation bad in the absence of a requirement that the despatch should be repeated in order to make the company liable for mistakes). And it was remarked by the learned Chief Justice that the right of the receiver of an unrepeated message could not, at best, rise higher than that of the sender. If this be true, the question we are now considering is of little importance; for it is probable that the blanks of all the companies contain such stipulations. But is this a sound proposition of law? Is the measure of damages of a third person, injured by the breach of a contract, to be limited to the amount recoverable by the other party to the contract? for this seems to be the force of the objection. The interest of the parties to the contract may be very small; while the injury to the third person may be very great. If the third person have a right of action at all, the value of the contract can be of no importance. Suppose the contract were without consideration, could it be contended that, since the parties could maintain no action for a breach of it, a third person, injured by its improper performance, could not? B. allows A. to pasture his cattle, gratis, in his meadow. Through the misconduct of B., the cattle break through the fence into C.'s corn-field, and are chased out

The recent cases of Henkel v. Pape, Law R. 6 Ex. 7, and Verdin v. Robertson, 10 Ct. Sess. Cas. (3d series) 35, have decided that under the English Telegraph Act of 1868 telegraph companies cannot be considered as the agents of the sender of an erroneous message. In Henkel v. Pape, Kelly, C. B., said: "The post-office authorities are only agents to transmit messages in the terms in which the senders deliver them. They have no authority

to do more." The act above referred to, as has been intimated, did not change in any way the relation of the companies to the senders or the receivers of messages; it simply provided for the purchase and management of the various lines by the post-office department. It would seem, therefore, that the cases cited are authorities in this country; and an examination of the doctrine of agency leads to the same conclusion.

The ground upon which the act of an agent binds his principal (in the absence of express appointment or ratification) is this: that the principal has held the agent out to the party dealing with him as having authority to bind him, either in the particular transaction, or in the class of transactions to which it belongs. If in point of fact it appear that the party dealing with the agent as such was not authorized by the supposed principal so to treat him, the latter will not be bound. The dealing, in such case, is with the supposed