
    Richard Waring and another v. The United States Telegraph Company.
    The rule that a person is presumed to admit a fact stated in a conversation with him, and not denied by him, does not extend to a letter received by him, and the fact that he does not, In replying to such letter, deny an allegation made therein, cannot be used to prove an admission by him of such fact.
    Plaintiffs having a claim for damages against a telegraph company, wrote a letter to the president, stating what they claimed to be the facts in the case. The president’s reply merely stated that he had submitted the letter to the counsel of the company for his opinion on it, and afterwards sent plaintiffs a written opinion of the counsel, adverse to the claim. Held, that the letter could not be introduced in evidence as an admission by the company of the facts alleged in it.
    Where improper testimony has been admitted in evidence, unless the court can say that the jury were not influenced by it, and that it could not by any possibility have affected the verdict, a new trial will be ordered.
    Appeal by defendants from a judgment entered on the verdict of a jury at trial term.
    Action for negligence in sending a telegraph message.
    On the trial the plaintiffs put in evidence the correspondence referred to in the opinion, and to its admission an exception was taken by the defendants.
    The material parts of the letter of the plaintiffs, containing their statement of their claim against the company is as follows :
    
      Pittsburgh, March 13thy 1865.
    Jambs McKays, Esq.,
    . Pres. U. S. Telegraph Co.
    Sir—On the 16th of December, 1864, we received from J. Macy’s Sons, New York, a communication stating that theynould sell refined oils in bulk, delivered in New York, for 81 and 82.
    Having, in consequence of these advices, purchased 2,000 barrels of oil, H. H. King, at 12.10 p. m. on December 17th, 1864, left a despatch at the office of your company in this city, with the manager, S. L. Fulwood, in person, directing J. Macy’s Sons to sell 500 barrels standard brands, January delivery. King and Fulwood had a communication of several minutes’ duration, concerning the importance of promptitude in sending and delivering “petroleum” despatches. King informed Fulwood that we were very anxious that our despatches should reach New York before one o’clock, and Fulwood assured him that the despatch should go forward immediately. At 12.45 p. m. on the same day, Alex. Semple left the following despatch, viz.: J. Macy’s Sons; New York,—Sell 1,500 more standard brand, January delivery. About 2.40 p. m. O. T. Waring left a despatch, saying: J. Macy’s Sons, New York. Make delivery of 1,000 barrels as late as January 10th,—fear difficulty in getting cars quite so soon. At the time he left this despatch, he inquired if our previous despatches to J. Macy’s Sons had gone forward, to which the clerk at the counter answered “ Yes,” and Mr. Fulwood, who was standing outside of the counter, spoke up and said, “Yes, they have gone.” Late in the afternoon we received a despatch from Philadelphia, which, from its tenor, led us to believe that a despatch which we had sent to Philadelphia some hours earlier had failed to go through. This made us apprehensive that our New York despatches might not have gone, and R. S. Waring at once went to the telegraph office (this was after five o’clock, p. m.) ; he asked the clerk at the counter if our despatches had gone; the clerk said, “Yes, sir.” He said, “ Are you sure ?” to which the clerk replied that he would go up stairs and see. Mr. Waring, feeling greatly exasperated, ran up stairs with the clerk, and found the operators’ room occupied by one small loy. 
      He inquired if our despatches to Hew York had been sent yet ? The boy, not appearing able to answer promptly, and Mr. Waring observing that he was engaged in sending despatches from the top of a pile, apparently thirty or forty, took the pile in his hands, and found our first two despatches at the very bottom of the pile, the third and last despatch being the only one which had yet been sent.
    This last despatch reached our correspondents, and was of course incomprehensible without its precursors; and they telegraphed us to know if they might sell 1,000 barrels at 81 and 82 cents, but their despatch reached us too late to be of any service, i. e., long after business hours; and the news of successes by our armies received on Sunday caused a decline in gold, and a consequent decline in oil, which so weakened the market that large sales could be effected. H. H. King immediately started for Hew York, and reached there before Monday at daylight. Josiah Macy’s Sons informed him that they could easily have sold 2,000 barrels, even after four p. m., on Saturday. Mr. King tried to sell on Monday, but failed utterly to get an offer. The 2,000 which would have been sold at 81 and 82 cents but for the gross negligence of the employees of your company, in either not at once sending or declaring their inability to send immediately our despatches, were sold to the best advantage possible according to our own opinions at the time, modified by those of experienced dealers in petroleurn in Hew York, in lots of various sizes at prices ranging from 74 cents down to 65 cents; and we find, upon receiving account of sales, that instead of realizing a clear profit of from §2,500 to §3,000, as we undoubtedly would have done if our despatches had not been detained, we actually made a net loss of precisely §9,880 23, thus making a difference to us of nearly §13,000.
    <fec., &c., &c., Waring & King.
    The substance of the various other letters put in evidence is stated in the opinion.
    Plaintiffs had a verdict for §6,600 damages, besides interest.
   By the Court.—Daly, Ch. J.

—The defendants rest their application for a new trial upon one ground solely, that it was error on the part of the court to allow the letters which had passed between the 13th of March and the 19th of September, 1865, to be used as evidence in the cause, and the plaintiffs have furnished no answer to it. The correspondence was objected to as irrelevant, and it certainly was, as it took place after the cause of action had arisen, and had relation to the settlement of the plaintiffs’ claim without suit. The first letter of March 13th is an elaborate statement in narrative form, on the part of the plaintiffs, of the facts and circumstances relied upon by them, as showing that they were entitled to recover from the company the sum of $9,880 23, and was written with a view of being laid before the board of directors of the company. The next was a letter of the plaintiffs asking what decision had been arrived at by the company, and was followed by a brief answer from the president that the subject of the claim had been referred to their legal adviser. This was followed by a letter of the plaintiffs, complaining of the course that had been taken, and asking what conclusion the counsel had come to. The remaining parts of the correspondence consist of further letters of the plaintiffs, wishing to know whether the defendants had concluded to refuse or to pay the claim, and farther letters from the president apologizing for the delay, and finally transmitting the written opinion of the company’s counsel, which was adverse to the plaintiffs’ claim. This correspondence was not, it would seem from the judge’s" remarks, admitted as of any materiality in itself. He rsnid that if it contained admissions as to the hour of receiving „he despatch, he thought it proper that it should go to the jury; that “ the fact was material t'o the issue and the operation of it, and its" denial or admission in a subsequent letter he would allow to go to the jury as a part of the res gestmP The letter of the plaintiffs with which this correspondence opened did contain a statement of the exact time when the despatch was left at the company’s office, to wit, the 17th of December, 1864, at 10 minutes past 12 o’clock, p. m. There was no admission or denial of this or of any of the facts consecutively detailed in the first letter written by the plaintiffs, unless the omission of the company or of any of its officers to deny formally by letter, what was .contained in the plaintiffs’ letter to the president, is to be construed into an admission of everything that was stated in that letter, which would be carrying the rule respecting .admission to an unwarrantable extent. “ What is said to a man before his face,” said Lcrd Tenterden in Fairlie v. Denton, 3 Carr. & Payne, 103, “ he is in some, degree called upon to contradict, if he does not acquiesce in it; but the answering of a letter is quite different, and it is too much to say that a man by not answering a letter, at all events, admits the truth of the statements that .letter contains.” In the present case, a party having a claim against a corporation writes a letter to its principal officer, giving a detailed statement of all the facts upon which the claim is founded, that it may be laid before the board of directors, in the expectation that it will satisfy them of the liability of the corporation, and that they will direct it to be paid, and is officially answered by the secretary of the company that the subject of the claim has been referred to their legal adviser, and after some time has intervened, the .president transmits the written statement of the counsel, that in his opinion the company have a good defense, and that he advises against paying the claim. There is nothing in this that can be regarded as an admission of the facts contained in the plaintiffs’ letter or which would entitle it to be read in evidence.to prove these facts. It would be preposterous to hold that all the facts stated in it were admitted by the corporation, because the president, secretary, or some officer of the company, in an application for compensation for alleged, damages, did not, by letter, deny the truth of them. Even admissions inferred from acquiescence in verbal statements made in a party’s presence, are received only where the declaration or statement made is of a kind which calls for immediate contradiction, or is such as would naturally provoke or would lead to some action or reply on the part of the person to whom, or in respect to whom, it is made, because inference from a party’s preserving a silence is a very dangerous kind of evidence, and is to be kept within very strict limits (Child v. Grace, 3 Carr. & P. 193 ; 14 Serg. & Rawle, 393; 1 Greenleaf Ev. § 199).

It was not essential to resort to this correspondence to prove the time when the first message had been delivered, for the plaintiffs’ witness King had already testified that he left the message at ten minutes after 12 o’clock, p. m., by the clock on the wall of the telegraph company, and identified, as his, an entry on the message to that effect, made at the time, and that he stated to the person that was there, the witness Fullwood, the time, as indicated by the clock, and explained to him how necessary it was that the message should reach New York by one o’clock. Now, the witness Fullwood testified that -he had no recollection of receiving the message from King, or of having had any conversation with him that day; and the person whose duty it was to receive messages, the witness Fulton, testified that he received it at fifteen minutes after 12 o’clock, p. m. ; that he noted the time in a book, and took it from the clerk in the office.

The judge regarded the time when the despatch was received as material to the issue, and it certainly was, for there was conflict upon that point between the plaintiffs’ and defendants’ witnesses, and conflict, also, in respect to what subsequently occurred throughout the day. The letter of the plaintiffs, which the judge admitted, not only corroborated the statement of the witness King, as to the exact time, but also the testimony of both King and Waring the plaintiffs, in respect to other matters occurring during the _ day between them and the defendants’ employees, and also contained statements of facts, which neither of them had testified to. Now, being received as an admission on the part of the defendants, it is impossible to say what effect it may have had upon the jury. It was an action for negligence, and the judge left it to the jury to say whether the messages failed to reach their destination because of the misconduct and negligence of the defendants’ agents. If the facts were as set forth in the plaintiffs’ letters, it was a very plain case of negligence, and the jury, for all we know, may have treated what was stated in the letters as admitted by the defendants, because there was no denial of it on their part by letter. Some very material things bearing upon the question of negligence were stated in this letter, and were not verified by the plaintiffs’ witnesses, one of which will suffice. The letter states that when the second message was delivered at the office by Semple at 12.45 o’clock, p. ii., he inquired if the previous despatches had gone forward, and that the clerk at the counter answered, “ Yes,” and Fullwood, the manager, “Yes, they have gone,” which, if they had so stated, was untrue, and calculated to mislead the plaintiffs. But Semple, when examined as a witness, gave all the conversation that took place at the telegraph office that he could remember, and says nothing about his having made the inquiry. The fact was material, for the plaintiffs’ witness Waring fixed the time of the sending of the second message at about 15 minutes past one o’clock, and at that time Fullwood was not in the office, for he went to his dinner at twelve, and returned at half-past one or about two o’clock, and the letter and the testimony of Waring together was to the effect that the plaintiffs’ agent was told that the two first messages had been sent to New York; and the plaintiff King testified that if Fullwood had not answered, when they sent to the telegraph office at 2.30, “Your two despatches are gone—if be had not made that misrepresentation—he, the witness, would have taken the two despatches and sent them with the third at 2.30, as sales could then be effected in New York before five o’clock. Now, Fullwood had no recollection of saying this, and in reply to a juror, testified that the general course, when the line was down, was to say, when a message came, “We cannot put yours through; go to another line; ” so that the fact whether he made the misrepresentation or not in respect to the two first messages, was a very material question in the case. Indeed, King testified that if they had got the two despatches when they took the third to the other office, they would have effected the sale.

The defendants’ operator testified that it was a cloudy, wet, and gloomy day. That the wires were in working order until half-past 11 o’clock, a. m., when the last message was sent by him, and were interrupted from that time until half-past three o’clock in the afternoon, when the next message was sent, and that they continued in order until nine o’clock in the evening. That when the interruption was temporary, it was customary to receive messages, but that when the derangement was serious, and likely to cause considerable delay, it was customary to inform customers of the fact when, offering their messages. The point in the case, therefore, was whether the defendants’ agents had been advised of the importance of the immediate transmission of the plaintiffs’ two first messages, and had prevented the plaintiffs from sending them by the other lines in time to effect the sale in New York, by representing that they had been sent, when it was not the fact. ■ The two witnesses of the defendants, Fullwood and Fulton, one the general manager,, and the other the clerk who received messages, had no recollection of any such statements being made to them or by them, as the witnesses Fang, Semple, and O. T. Waring testified to. The first message was left, according to the defendants’ witnesses, at fifteen minutes past 12 o’clock, p. m., and the second at half-past one, and the line had ceased working for two hours when the second message was received. It is suggested that there is evidence uncontradicted in the case sufficient to warrant the verdict, as matter of law. But I do not think we can assume this. The testimony of Fullwood and Fulton was general, loose, and, as it stands, was unsatisfactory. But the weight or value to be attached to it was for the jury, and the judge very properly left the case upon the whole evidence to them. The plaintiffs’ letter, as a statement of fact, was stronger than the other evidence which the plaintiffs gave upon the trial, and, as the defendants’ counsel has argued upon the motion, there is a color ” about it that gives a very strong and decided impression of very culpable negligence on the part of the defendants, or rather, of their agents. We cannot say that the jury were not influenced by it; that it could not, by any legal possibility, have affected the verdict; and where such is the case, the only safe course is to order a new trial (Gillett v. Mead, 7 Wend. 193; Benjamin v. Smith, 12 Id. 404; Clark v. Vorce, 19 Id. 232; Williams v. Fitch, 18 N. Y. 546; Anthoine v. Coit, 2 Hall, 40; Underhill v. N. Y. & Harlem R. R. Co. 21 Barb. 496, 497; Clark v. Crandall, 3 Barb. 612).

Judgment reversed. 
      
       Present, Daly, Ch. J., Larremore and J. 3?. Daly, JJ.
     