Leonard v. The New York, Albany and Buffalo Electro-Magnetic Telegraph Co.

They are bound, also, to use the machinery which will, in the best and safest manner, deliver to them the expected messages. Careless reading or ignorant management of the machinery is no excuse; it is simply an aggravation of the offense. The negligence was quite enough to justify the action.

The rule of damages adopted by the referee was the most favorable to the defendants of any that could have been applied, unless it should have been held that no recovery could be had beyond the price paid for the message. He gave the difference in the value of the salt at Oswego, on the day of its shipment, and its value in Chicago on the same day, together with the expense of transportation. Nothing was allowed for profits that might have been made on the fine salt ordered, or on the salt at Oswego, if it had not been sent, and no question of a falling market is in the case. The value of the salt at Oswego, where it would have remained except for the erroneous message, as compared with its value at Chicago, where the same error caused it to be sent, with the expense of so sending it, was the smallest allowance that could have been made. The case shows that the salt was actually sold in Chicago at a much greater loss, and that the plaintiffs were at an expense of several hundred dollars in storing the salt at Chicago. These items were not allowed. Griffin v. Colver, 16 N. R. 489; Blot v. Boiceau, 3 Coms. 78; Watkinson v. Laughton, 8 Johns. 213; Amory v. McGregor, 15 id. 24; Richmond v. Bronson, 5 Denio, 55.

If this is a question of contract, the point of the plaintiff's negligence does not properly arise.

The breach of a contract by one party is not justified by the subsequent negligence of the other party. It can only be important on the question of damages. In actions of tort, where the plaintiff claims for the negligence of another, if he himself has been negli. gent, and thus contributed to his own injury, he can recover no damages; in every aspect of this point, the decision of the referee, implied in his finding, that there was no negligence on the part of the agent at Oswego, is conclusive. It might or it might not have been in his power to stop the sailing of the vessel on the 27th. It might or might not have cost less to stop it than to allow it to go on. We do not understand the rules regulating this subject, or their effect, as well as did the agent at Oswego, or as did the referee We must rest upon the decision of this latter.

Judgment should be affirmed, with costs.

Leonard v. The New York, Albany and Buffalo Electro-Magnetic Telegraph Co.

LOTT, J.* The counsel for the appellants, in his points, waives all the points raised by the case except the following:

1st. Whether the plaintiffs were negligent and contributed to their own injury.

2d. Assuming that they were not, and that every other point requisite to sustain their cause of action be in their favor, what would be the proper rule and measure of damages in this case?

They will be briefly considered.

1st. Upon the facts found by the referee, the plaintiffs were authorized to ship the salt ordered to be sent by the telegram delivered to them. I see nothing in the case which can properly charge them with improper conduct in proceeding to execute the order. Nor is there, in my opinion, any thing to warrant the conclusion that they were chargeable with negligence in not stopping the vessel on board of which the salt had been put, and requiring a return thereof.

The referee has found affirmatively that when the dispatch of September 26, 1856, from the plaintiffs to Staats, their agent, apprising him of the mistake in the order of Magill & Pickering, was received, he knew said vessel had finished loading, and supposed she had actually left the Oswego harbor. He also finds, it is true, that did not appear that he made any effort whatsoever to ascertain ɔ: inform himself of the fact as to whether she had actually sailed or was then within the Oswego harbor. The omission of such effort did not constitute negligence. Knowing that the vessel was loaded, and believing that she had left port, and without any fact shown to raise a doubt as to the fact of her having sailed, why should he go on an errand or make an inquiry inconsistent with such belief? I certainly cannot see any rule or principle imposing on him that duty or obligation, and consequently there can be no imputation of negligence for omitting to do an act which he was not bound to perform.

2d. After a careful consideration of the question of damages, I have come to the conclusion that the rule adopted by the referee was correct, or at least as favorable to the defendants as can, upon any principle, be claimed by them. He has not charged them with any damages resulting from the non-fulfillment of the order, as actually given, to "send five thousand SACKS of salt immediately,"

The following opinion was delivered by LOTT, J., on the argument at the March term, and adhered to on this argument. - RE.

Leonard v. The New York, Albany and Buffalo Electro-Magnetic Telegraph Co. but he has held them responsible only for the loss that has resulted from the order actually given to the plaintiffs' agent, that directed them to "send five thousand casks," instead of sacks, of salt that induced them to ship the salt which was sent and to incur the expense of the transportation thereof; and when it reached where it was ordered to be sent, it was not worth as much in the market there as its value at the port from which it came. If the order had not been given that expense would not have been incurred, and the loss resulting from such difference would not have been sustained. They are, therefore, the direct and immediate consequence or result of the defendant's act, and with those only, and the interest thereon, have they been charged.

It is insisted, and it may be the fact, that if the salt had been sent back from Chicago to Oswego, the loss to the plaintiffs would have been less than the difference in value at those places. I am, however, unable to find any authority in the plaintiffs to return it, much less any duty or obligation to do so. Such return would have been attended with the cost of transportation and the charges incidental thereto, and those would not have been justified by the order; that was fully executed when the salt reached its place of destination in pursuance thereof; and there is no ground for saying that any thing done after its full execution was done in compliance with its terms and direction. It necessarily follows, that the expense incurred thereby would not have been a direct or necessary result or consequence of the defendant's act.

These views lead us to the conclusion that the referee did not err in his decision on either of the two questions now presented for our review, and that the judgment appealed from should be affirmed, with costs.

All the judges concurring for affirmance, except GROVER, J., who thought the rule of damages erroneous,

Judgment affirmed.

NOTE. As to the nature of the liability of telegraph companies, there are several decisiona not referred to in the foregoing opinion. In MacAndrew v. Electric Telegraph Company, 17 C. B. 3, decided in England in 1855, it was held that telegraph companies stand in the same position as common carriers of goods; and, in the absence of express stipulations to the contrary, are liaole as insurers; but it may be fairly doubted whether the question arose in the case. In the case of Parks v. Alta California Telegraph Co., 13 Cal. 422, the supreme court in that stace held that telegraph companies are, in contemplation of law, common carriers, and are subject to the rules of law governing the same. So in Rittenhouse v. Independent Telegraph Line, . Daly (N. Y. Com. Pleas), 475, the defendants were held liable for damages sustained by plaint ff through a mistake in the transmission of a message, although it did not appear how the mistake had occurred, or that the defendants had been guilty of negligence.

Herrick v. Woolverton.

There is another class of cases which hold telegraph companics to be analogous to common carriers, though not absolute insurers, and liable for a failure to exercise the utmost diligence and skill. Such are the cases of The New York & Wash. Tel. Co. v. Dryburg, 35 Penn. St. 298; Bowen v. Lake Erie Telegraph Co., 1 Am. Law Reg. 685; Stevenson v. Montreal Telegraph Co., 16 U. C. 530; De Rutte v. New York, Albany & Buffalo Tel. Co., 1 Daly (N. Y. Com. Pleas), 54′′ In all these cases telegraph companies are charged with the presumption of negligence in case of error or delay in the transmission or delivery of messages, but are exonerated where such error or delay results from atmospheric or other causes over which human agency has no control A third class of cases hold telegraph companies liable only for want of reasonable diligence and skill. Washington & New Orleans Telegraph Co. v. Hobson, 15 Gratt. 122; Birney v. New York & Washington Telegraph Co., 18 Md. 341; Breeze v. United States Telegraph Co., 45 Barb. 275; Ellis v. American Telegraph Co., 13 Allen, 226; Western Union Telegraph Co. v. Carew, 15 Mich. 525.

In several of the cases above cited the action was brought by the receiver of a message for injuries sustained by him from an error in transmission: but in a recent English case (Playford v. The United Kingdom Telegraph Co., 2 Albany Law Journal, 336) the court of queen's bench held that the person to whom a message was sent by telegraph had not such an interest in the contract for transmission as would enable him to maintain an action for damages sustained by him from the company's mistake. - REP.

The rule, that a promissory note, payable on demand, with interest, is a continuing security, does not apply between holder and maker.

Therefore, a note, payable on demand, with interest, transferred nearly threemonths after date, is past due when transferred, and subject to all the defenses. that would have been available if the suit had been by the original payee. (LOTT and SUTHERLAND, JJ., dissentiente.)

APPEAL from an order of the supreme court, at general term, granting a new trial on a verdict in favor of the defendant.

The action was brought upon a promissory note, bearing date February 9, 1861, for the payment of the sum of $1,500, with interest, on demand, to the order of H. D. Hawkins, and signed by the defendant. On the day of its date, the note was indorsed by Hawkins, and delivered by the defendant to Jonathan R. Herrick, who was the real payee or first holder, and who held it till the last of April or first of May, 1861, when he transferred it to the plaintiff. It appeared from the evidence that the note was executed and delivered by the defendant to Jonathan R. Herrick, on a transfer tc him by the latter of fifty shares of the capital stock of the Bank of

Herrick v. Woolverton.

Albany. The defendant claimed, and his evidence tended to show, that the transfer of said stock was a mere loan of the same by Jonathan R. Herrick to defendant, and that the note was made as a memorandum by way of security for the return of the stock, and for no other purpose; and that the defendant, before the commencement of the action, duly tendered the stock to Jonathan R. Herrick and demanded the note, which was refused.

The plaintiff's evidence tended to show that the transaction was a sale of the stock, and that the note was given for the purchaseprice.

There was no evidence that the plaintiff had notice, at the time he received the note, of the defendant's claim, or that he, the plaintiff, paid a valuable consideration for it. All the parties resided in the same city, and did business in the same street.

The court instructed the jury, that the plaintiff, having taken the note nearly three months after its date, and living in the same city, and doing business in the same street, with the other parties, was bound, at his peril, to make inquiries as to the note, and that the note was open to any defense existing between the original parties; and refused the plaintiff's request to charge, that the note, being payable on demand, with interest, was a continuing security, and, as sach, not due till demand actually made.

The jury found a verdict for the defendant, and the plaintiff appealed.

John H. Reynolds, for appellant, cited Haxton v. Bishop, 13 Wend. 13, 21; Sice v. Cunningham, 1 Cow. 397, 407; Thompson v. Ketchum, 8 Johns. 190; Gaylord v. Van Loan, 15 Wend. 308; Edwards on Bills, 156; Losee v. Durkin, 7 Johns. 70; Hendrick v. Judah, 1 id. 319: Furman v. Haskins, 2 Caines, 369.

Henry Smith, for respondent, cited James v. Chalmers, 2 Seld. 214; Pratt v. Adams, 7 Paige, 616; Nelson v. Cowing, 6 Hill, 339; Barough v. White, 6 Dow. & Ry. 379; Wethey v. Andrews, 3 Hill, 582; Merritt v. Todd, 23 N. Y. 28; Scovil v. Scovil, 45 Barb. 517 523, 524; Payne v. Gardiner, 29 N. Y. 146, 172, 173; Payne v. Slate 39 Barb. 634, 640-642; Weeks v. Prior, 27 id. 80, 81.

FOSTER, J. The jury having found that the transaction between the defendant, who was the maker of the note, and Jonathan R