
    THOMAS A. YOUNG, Plaintiff and Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, Defendant and Appellant.
    Teleobaph Companies.
    1. Printed Conditions.
    
    
      a. Where there is contained on the blank on which the message is written, and above the message, a printed clause that all mesages are taken subject to the terms thereon printed, and also a printed request to send the message subject to such terms, stating the same to be agreed to, the terms so printed became a part of the contract betwen the sender and the company, and are valid and binding on the sender.
    
      b. Clame providing that the company will not be liable where the claim is not presented in writing within a certain time.
    
    1. The words “ presented in writng ” mean that the claim shall be delivered to and left with a proper authorized official.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.
    
    
      Decided May 4, 1872.
    This action was brought to recover damages sus tained by the plaintiff through the erroneous trans mission of a telegram sent by him over the defendant,’ telegraphic line.
    The message was written by the plaintiff on one o the blanks of the defendant, which had printed upoi it above the message the following clauses, amongs others:
    “The Western Union Telegraph Company.
    “ All messages taken by this company subject t the following terms:
    
      “The company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message.
    “O. H. Palmer, J. H. Wade,
    “Secretary. President.
    “ Send following message subject to the above terms, which are agreed to.”
    The plaintiff, to show that he had complied with the above stipulation as to the presentment of his claim, proved that his attorney within the sixty days made out in writing a statement showing the loss the plaintiff had sustained; that the attorney took this statement to the office of the defendant; that he stated his business and exhibited this paper to a person in that office, whom he supposed to be an operator, that this person “took the paper, looked at it, handed it back, and told him he bad nothing to do with it, and knew nothing about it and referred him up stairs to some of the officers ;” that the attorney went up stairs and asked for the treasurer, who was absent, and further asked for Mr. Wade, who on the paper that contained the despatch was named as president of the defendant, and was told that he was out of town ; that the attorney then left the office, taking with him the written statement ; that the attorney, after the sixty days had ended, made in writing another statement of the claim, which he left with the company.
    
      Lowrey & Soren, attorneys, and George H. Soren, of counsel for appellant, argued:
    I. The judgment should be reversed, for the erroneous rulings and instructions in regard to the presentment of the claim for damages. If the plaintiffs’ claim was not presented to the defendant in writing, within sixty days after sending the message, the plaintiffs could not maintain their action.
    (1.) The requirement of such a presentation, that is to say, in writing, and within a specific limit of time, was a reasonable one, which the defendant was entitled to make. Such a requirement is very familiar in policies of insurance, and has always been held valid and binding on the insured. “We are not aware that any doubt has been entertained of the validity of a stipulation in a policy of insurance that notice shall be given of a- loss within a limited time ; such a provision is a condition precedent”" (Patrick v. Insurance Co., 43 N. H. 622; Repley v. Ætna Insurance Co., 30 N. Y. 136, and cases cited; Cray v. Hartford Insurance Co., 1 Blatchf. 280 ; Amesbury v. Bowditch Insurance Co., 6 Gray, 603; Roach v. New York and Erie Insurance Co., 30 N. Y. 548 ; Inland Insurance Co. v. Stauffer, 9 Casey, 397; and see Bumstead v. Dividend Insurance Co., 2 Kern. 91).
    (2.) In this case, the requirement was expressly agreed to by the plaintiffs, when they signed and delivered their message, written on the company’s blank, containing the condition (Wolf v. W. Union Insurance Co., 62 Penn. 87; Lewis v. Gr. Western Railroad Co., 5 H. & N. 67). These cases, and especially the first of them, expressly hold, that in just such a case as this, the condition is binding on the plaintiff, and performance of it is a condition precedent to his recovery.
    (3.) The reasons upon which such a provision is upheld in insurance cases, apply with even greater force in telegraph cases. “The clause contemplates a loss about which a controversy may arise between the insured and the company, and in respect to which the right to- indemnity may be denied. The object was not to foreclose it and prevent, a resort to. the proper tribunal, but to compel a-speedy resort, and a termination of the controversy, while the facts were fresh in the recollection of the parties and witnesses, and the proofs accessible” (per Nelson, J., Cray v. Hartford Insurance Co., 1 Blatchf. 280). There was no performanee of this condition by the plaintiffs. Senders, by writing their messages on blanks of the telegraph companies under their printed headings, assent to the rules and conditions contained in them, and the senders and the telegraph company thereby contract together, on those terms and conditions (Breese v. U. S. Tel. Co., 45 Barb. 274; lately affirmed in commission of appeals. Lewis v. Great W. Ins. Co., 5 H. &-N. 867; Bryant v. Tel. Co. 1 Daly, 578; Wolf v. W. Un. Tel. Co., 62 Penn. 87 ; Sweatland v. Ill. and Miss. Tel. Co., 27 Iowa, 447; Wann v. Tel. Co., 37 Mo. 472 ; Ellis v. Am. Tel. Co., 13 Allen, 226 ; W. Un. Tel. Co. v. Carew, 15 Mich. 525 ; Gildersleeve v. U. S. Tel., Co., 29 Md. 232: Camp v. Tel. Co., 1 Metc. (Ky.) 164; Leonard v. N. Y. Tel. Co., 44 N. Y. 544). Notice to the corporation in such a matter as this, could no more be given through an operator, than through a message boy. “ Proof of the mere existence of a relation of agency to a corporation, establishes an agency no farther than is necessary for the discharge of the duties ordinarily belonging to it (2 Greenl. Ev. §64 a). “ The knowledge of a mere agent, unauthorized to represent the company beyond the specific powers committed to him, cannot be the ground of an estoppel in a matter unconnected with the exercise of his powers. This can only take place when the knowledge . . comes home to those officers who exercise the corporate powers of the company, or to an agent whose powers relate to the very subject out of which the estoppel arises” (Mitchell v. Lycoming Insurance Co , 51 Penn. 411). In that case, it was held that the agent of an insurance company, whose duty it was to make surveys, receive applications for insurance, approve assessments and receive assessments, was not authorized to accejpt notice of over insurance. “We know that ordinarily, notice to a director . of an incorporated company is not notice to the company, and for the best reason, that directors are usually but consulting managers, not executive agents ” (Inland Insurance Co. v. Stauffer, 33 Penn. 403). Even in respect to the power of the president of an insurance company to make insurances, “ it is incumbent on the complainants to offer competent and sufficient evidence of his authority to bind the company” (Commercial Ins. Co. v. Union Ins. Co., 19 How. U. S. 322).
    
    
      M. K. W. Jones, attorney, and of counsel for respondent, argued :
    I. That the printed heading under which the telegram was written, did not, in the absence of proof that it was seen and assented to by plaintiffs, constitute part of the contract between them and the defendant; and in holding that it did, the judge at the trial term erred against the plaintiffs (Hollister v. Nowlen, 19 Wend. 234; Judson v. Western Railroad Co., 6 Allen [Mass.], 486 ; Judson v. Western Railroad Co., 11 Cush. [Mass.] 97). The objection that defendant was not notified in writing of plaintiff’s claim, within sixty days after the sending of the message, may be met with several answers.
    (1.) The printed statement on the blank that the company would not be liable for damages in any case where the claim was not presented in writing within sixty days,” &c., is not shown to ham been seen or assented to by plaintiff s, and the-court erred in ruling that the same constituted part of their contract with the defendant (Hollister v. Nowlen, 19 Wend. 234 ; Judson v. Western Railroad Corporation, 6 Allen [Mass.] 486, 11 Cush. [Mass.] 97.
    (2.) Defendant could not limit its liability by specifying in a mere notice, printed in its blanks, that it would not be liable for any loss unless the claim therefor should be presented in a given time (Southern Express Co. v. Caperton, 44 Ala. 101).
    (3.) To permit such a limitation of liability for acts of negligence, would not only be against public policy, but would be to authorize telegraph companies to adopt their own statutes of limitation, and thus usurp legislative powers.
    (4.) Such a limitation would be unreasonable. In many cases it could not be ascertained, within sixty days after the sending of a message, what or whether any damage had resulted from an error in its transmission.
    (5.) The printed notification at the head of the blank cannot be claimed as binding, on the ground that is a recital of the company’s “rules and regulations.” Had the company the power to adopt such ‘ ‘ rules and regulations,” as are there set forth ; there is no proof that any such ever were adopted by the defendant.
    (6.) If the judge was right in holding that the contract between the parties required written notice of the plaintiff’s claim, within sixty days, the requirement was substantially complied with.
    (7.) The witness who gave the written notice within sixty days inquired at defendant’s office for Mr. J. H, Wade, whose name appeared on the printed heading to defendant’s blanks as president of the company, and on whom it was sought to serve the notice. It appears, by testimony offered on behalf of defendant, that J. H. Wade was not, in point of fact, president of the company at that time, and was absent in Ohio.
   By the Court.—Sedgwick, J.

The case of Breese v. The United States Telegraph Company, decided in the supreme court (45 Barb. 274) and in the commission of appeals settles the law to be, that the matter printed on the blank above the message which the plaintiffs required the company to send, and which was signed by one of the plaintiffs, forms a part of a contract between the parties. The opinion delivered in the commission of appeals in Breese v. The United States Telegraph Company, is not in the reports, but a printed copy of it was handed to the court in this case by the appellant’s counsel.

By that contract it was agreed that the company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message. Bumstead v. Dividend Ins. Co., 12 N. Y. 91; Ames v. N. Y. Union Ins: Co., 14 Id. 265 ; Ripley v. The Ætna Ins. Co., 30 Id. 163 ; Roach v. The N. Y.. & Erie Ins. Co., 30 Id. 548; sustain the validity of such a stipulation.

The plaintiff, to show that he had complied with the stipulation, proved that his attorney within the sixty days made out in writing a statement showing the loss the plaintiffs had sustained; that the attorney took this statement to the office of the defendant; that' he stated his business and exhibited this paper to a person in that office, whom he supposed to be an operator, that the person “ took the paper, looked at it, handed it back, and told him he had nothing to do with it, and knew nothing about it, and referred him up stairs to some of the officials that the attorney went up stairs and asked for the treasurer, who was absent, and further asked for Mr. Wade, who, on the paper that contained the despatch, was named as president of the defendant, and was told that he was out of town ; that the attorney then left the office, taking with him the written statement; that the attorney, after the sixty days had ended, made in writing another statement of the claim which he left with the company.

The clause in question is not full in its expressions ; Yet there can be no doubt of its meaning. To present, has, among others, two meanings—the one, to exhibit, &c., and the other, to give. This latter is intended in this case. To perform his obligation the plaintiff had to deliver over to and put under the dominion of the company the claim in writing within sixty days. This was never done. The attorney never absolutely lost, even for a short space of time., his control of the statement. He stated his business and exhibited the paper to a man in the office, he supposed to be an operator. Evidently this was a preliminary to his parting with it finally. In response, the man, taking the paper in his hand, not to receive it, but examine it, said he had nothing to do with it and knew nothing about it, and the attorney took the paper back. This sufficiently shows that the plaintiffs on this occasion did not do what had to be done on their part to put the company in possession of the written claim. There was no delivery.

But if they had in the first instance, the taking of it back would .be sufficient to show that there was no presentation of the claim in the meaning of the contract. It would prevent the company attaining that final possession of it which is an essential part of a presentation under the contract.

It cannot be said that if the company once having it, chose to return it, the plaintiffs might receive it. If the so-called operator was an agent of the company to receive such a statement for the purpose of being sent to the right officer or department, he certainly was not, and to the knowledge of the plaintiff, its agent to return it.

And generally the object of the clause was that the company should have in its possession a written statement of claim. If the plaintiffs so act in regard to the written statement, that the defendant can have none of the benefits of its possession, they do not fulfill the contract.

The court • charged that if the jury believed the facts that have been stated here to have actually ocr corred, then the plaintiffs had given the statement of the claim under the clause in question.

An exception was taken to this, and on this ground the judgment must be reversed.

In light of this conclusion it is not of practical importance to examine the other exceptions taken in the case.

Judgment reversed, new trial ordered, with costs ’ to appellant to abide event.  