
    Breese and Mumford vs. United States Telegraph Company.
    A telegraph company furnished to the public printed blanks, upon which persons wishing to send messages were to 'write the same. These blanks contained a printed heading, in which the company stated the conditions upon which it .would transmit messages; provided a method of guarding against errors.or delays in the transmission' or delivery of messages, by a repetition thereof; and declared that it was agreed between the company and the signer, that without such repetition, the liability of the company for such error or delay should be limited to the amount paid for transmission, unless the message was specially insured. After the blank date, and before the space for the message, were these words: “ Send the following message, Subject to the above conditions and agreement.” Held that such a printed blank, before being filled up, was a general proposition to the public of the terms and conditions upon which messages would be sent and the company become liable in case of error or incident.
    That by' writing a message under such a heading, and signing and delivering it , for transmission, the sender accepted the proposition, and it became an agree!,ment binding upon the company only according to its specified terms and 'conditions.
    And that this legal consequence was not varied by the fact that the sender of the message had not read the printed conditions and agreement thus subscribed. That such an omission would be gross negligence, which he would not he allowed to set up to establish a liability against the company which was expressly stipulated against.
    Against such a claim the principle of estoppel in pais applies in full force.
    Telegraph companies are not common earners. The two kinds of business have hut a mere fanciful resemblance, and can not be subjected to the same legal rules and liabilities. '
    But even'if they were common carriers, their right to limit their liability, by express contract, is well settled.
    The plaintiffs delivered to the defendant, for transmission from Palmyra to -' their, correspondents in New York, amessage directing the purchase of “ |700 in gold,” written upon such a printed blank as above described, and signed by them, without ordering the message to be repeated, or providing for its being insured. Through the error of some of the defendant’s operators, the message, as delivered to the correspondents, required them to purchase “ $7000 ” instead of the smaller sum; in consequence of which error the plaintiffs suffered serious loss.. Held that they could not recover the amount, of the company.
    CONTROVERSY without action, submitted under section 372 of the Codé. The following are the facts:
    On the 16th of March, 1865, George W. Cuyler, president of the First National Bank of Palmyra, acting for the plaintiffs, presented to the defendant, a corporation duly incorporated, and engaged in the business of transmitting messages and dispatches by electric telegraph for hire, over its line of wires, extending from the city of New York northwardly and westwardly, at its office in Palmyra, a certain dispatch written upon the ordinary blank of the defendant, and requested the same to be transmitted to the parties to whom the same was addressed, and paid for such transmission the fee charged by the • defendant, but did not pay for, nor request to have the same repeated. The blank and message thereon written were as follows:
    “No.— To all points,in the United-States and British Provinces'. Reg’d.
    United States Telegraph Company.—E. C. Fellows, Gend Supt., Syracuse, N. Y. W. H. Kirtland, Ass’t 'Supt. Rochester, N. Y. N. Randall, President, Syracuse, N. Y. S. 0. Hay, Secretary, N. Y.
    In order to guard against errors or delays in the transmission or delivery of messages, every message of importance ought- to be repeated by being sent back from the station to which it is directed to the station from which it is sent, and compared with the original message. Half the tariff price will be charged for thus repeating and comparing. And it is hereby agreed, between the signer or signers of this message and this company th$t this company shall not be held re* sponsible for errors or delays in the transmission or delivery of this message, if repeated, beyond the amount of fifty dollars, unless a special agreement for insurance be made and paid for at the time of sending the message and the amount of risk specified in the agreement, and that in case this message is not repeated, this company shall not be held responsible for any' error or delay in the transmission or delivery of same beyond the amount paid for transmission, unless specially insured, and the amount of risk paid for and specified in this agreement at the time; nor shall this company' be held liable for errors in ciphers, or obscure, messages; nor for any error or neglect by any other company over whose lines this message may be sent to reach its destination; and this company is hereby made the agent of the signer of this message to forward it over the lines of other companies when necessary. No agent or employee is authorized or allowed to vary the terms of this agreement, or make any other or verbal agreement, and no one but the superintendent, is authorized to make a special agreement for insurance. This agreement shall apply through the whole course of this message on all lines by which it may be transmitted. ■
    
      Palmyra, March 16, 1865.
    Send the following message, subject to the above conditions and agreement:
    To Cammann & Co. No. 56 Wall street, New York.
    Buy us seven ($700) hundred dollars in gold.
    Geo. W. Cutler, Pt. 3
    
    No. 2. Please write your address under your signature.”
    Cuyler had on hand at his office a lot of these blanks, which the defendant had left there to secure business, and took the blank in question from amongst the others and wrote the dispatch upon it. But neither Cuyler nor the plaintiffs had ever read the printed portion of said blanks. The message thus delivered was 'duly transmitted from the office at Palmyra, as written; but by some error of some of the de-* fendant’s operators working between Palmyra and New York, the precise cause of which is unknown, it was received in New York and sent and delivered to Cammann & Co. in the following form: “To Cammann & Co., No. 56 Wall street, New York. Buy us seven thousand dollars in gold> Greo. W. Ouyler, Ft.”
    
    In consequence óf the receipt of this message, Cammann & Co. immediately, on the same day, purchased on account of the plaintiffs $7000 in gold coin, and paid for the same the then market price of $1.71 in legal tender notes for each dollar in gold. As sooq as possible after the discovery of the error, the plaintiffs notified the defendant of the same, and of the purchase, and tendered to the defendant the gold so purchased, at the price which had been paid, and gave notice that unless the defendant elected to accept said’ gold at the pirice paid, the samé would be sold in the public market for the highest price and the defendant held liable for the loss. The defendant refused the tender, and the gold was accordingly sold at the best market price, which- was $1.51f in legal tender notes, by which a loss was sustained of $1244.25.
    The plaintiffs seek to recover the amount of this loss, with interest.
    
      Charles McLouth, for the plaintiffs.
    I. The defendant is engaged in a particular branch of business in which the interests of the public, and in this instance the plaintiffs, are deeply concerned. The essential incidents of their business, for which they fix their own price and receive whatever compensation they choose to charge, are speed and accuracy. They engage to do a certain service for a given price. The greatest importance, attaches to their strict performance of that, which they fix and receive their own terms for doing. The legal obligation is the same, whether a message is carried upon wires or goods are carried upon a route. The breach of contract in either case may be attended with similar consequences, and the liability should be no less.
    
      By the statute of the state of New York, it is made the “ duty of the owner or the association owning any telegraph line doing business within this state, to receive dispatches from or for other telegraph lines or associations, and from or for any individual, and on payment of their usual charges, for individuals for transmitting dispatches as established by the rules and regulations of such telegraph lines, to transmit the same with impartiality and good faith.” (2 R. S. 5th ed. 740, § 11.) Under this statute the company assume to the public .the relation of common carriers. The fact that they are bound by law to transmit all messages for individuals, places them in the same position as carriers or innkeepers. (Orange Bank, v. Brown, 3 Wend. 158-164. Coggs v. Bernard, 2 Ld. Raym. 909. Sweet v. Barney, 23 N. Y. Rep. 335-337, and cases cited. 2 Kent’s Com. 2d ed. 598.) They carry a commodity—intelligence—for the public indiscriminately, and there is perceived no difference whether they carry a message upon wires, or a tangible packet in hand or bag. (McAndrew v. Electric Telegraph Co., 17 Com. B. R. 3, 84 Com. Law.) In Parks v. Alta California Telegraph Company, the plaintiff sent a message requiring his agent to attach the property of one of the plaintiff's debtors. The message was delayed, and other creditors obtained attachments prior to the plaintiff. The debtor became insolvent, whereupon the plaintiff" brought the action against the company and recovered. The company were held to be “ common carriers” in the strongest language. (Parks v. Cal. Tel. Co., 13 Cal. Rep. 442. 4 Am. Law Reg. N. S. 197-199, Feb. 1865.) The statute in California relating to telegraph companies is the same, in terms, as our statute above quoted. In Dryburg v. N. Y. and Washington Pr. Tel. Co., an individual had telegraphed to the plaintiff, a florist, for “two hand bouquets.” The message was delivered “two hundred bouquets,” which the florist furnished, but the sender refused to receive them. The florist brought the "action against the company, and recovered the value of the' two hundred bouquets. The court held that the company was a common carrier, with the same duties and obligations springing, from the same sources, i. e. the public nature of their employment, and the contract under which the particular duty is assumed. (N. Y. and W. Pr. Tel. Co. v. Dryburgh, 35 Penn. R. 208. Bowen & McNamee v. Lake Erie Tel. Co., Ohio, 1 Am. Law Reg. 685.) In Stevenson v. Montreal Tel. Co., the Queen’s Bench held that - the principle governing the liability of the, defendant, was similar to that governing railway companies or carriers—that they are bound to discharge the duty which they have undertaken, with care and diligence, and with a reasonable degree of skill and efficiency, and that if they fail in any of these particulars, the person who employed them can recover from them in a court of law compensation in damages for.the injury which they have occasioned; not always to the full extent of what such person may have lost, but compensation for any injury directly and naturally arising from the company’s^ default, and such as may consequently be fairly supposed to have been within the contemplation of the parties when the service was undertaken. (MSS. Report.) (But the case was decided for the defendant, on the ground that the company was not liable for the default of its connecting lines.) In Landsberger v. The Mag. Tel. Co., the defendant was held liable for the non-delivery of a dispatch; and it was further held that the company was liable for all the damages sustained—gains as well as losses. (Landsberger v. Mag. Tel. Co. 32 Barb. 530-533.) In Lockwood v. Independent Line of Tel. Co., a merchant in ¡New York ordered a message sent as follows : “ Stop sewing pedal braid until I see you.” The message delivered was: “Keep sewing pedal braid until I see-you.” From this error a large quantity of braid was manufactured into unfashionable shapes. The merchant received and sold them and then brought his action against the company for the error, and recovered the full value of the braid and the cost of manufacturing, less the amount for which he sold- the unfashionable bonnets. (New York Com. Pleas, November 16, 1865, before Judge Daly, MSS. Rep.) In Leonard & Burton v. The Alb. N. Y. and Buffalo Mag. Tel. Co., the Supreme Court of the 5th district held the defendant liable for the whole value, where the word sacks was made to read casks in delivering a message. (MSS. Report Trevor v. Wood, ' 26 How. 458-467.)
    II. It is. claimed that the conditions printed upon the blank used, release the company from liability—the message being neither repeated nor insured as therein provided. The defendant had left blanks at the office of Mr. Cuyler, to secure business. He took the blank from among them to write the message upon. He or the plaintiff had never read the printed portion of the blank, and therefore it must be assumed had no knowledge-of it. 1. The law is well settled that common carriers can not limit their liability by notice, though expressly brought to the knowledge of the person with whom they are dealing. (Dorr v. N. J. Steam Navigation Co., 1 Kern. 485-490. Bissell v. N. Y. C. R. R. 25 N. Y. Rep. 445, per Selden, J.) A notice is of no avail unless the owner assents to its terms. (Nevins v. Bay State Steamboat Co., 4 Bosw. 225. Hollister v. Nowlen, 19 Wend. 234. Cole v. Goodwin, Id. 251. N. J. Steam Nav. Co., v. Merchants’ Bank, 6 How. U. S. Rep. 344-382.) If it is claimed that the conditions are a notice, it will not release the defendants, for (1.) No notice is sufficient, within the cases ; (2.) It was not brought home to the plaintiffs; (3.) It appears affirmatively that they had no knowledge and never assented to any of the terms of the notice. In the case of the Steam Nav. Co. cited, Judge Nelson says: “If his liability can be limited, it can not be by any act of his own. He can not do it without the assent of the parties concerned, and this is not to be implied or inferred from a general notice to the public, which may or may not be assented to. Nothing short of an express stipulation, parol or in writing, should be permitted to discharge him from the duties which the law annexes to his employment.” (6 How. U. S. Rep. 382.) If by the later decisions the defendant could limit liability by an express agreement, (1 Kern. 485; 20 N. Y. Rep. 173; 24 How. 290,) there was no agreement here. The plaintiffs had no knowledge of the conditions, and never assented or agreed to them. (6 How. above.) If there is no knowledge, there can be no contract. There must be a certain and definite proposition, and a reciprocal assent—an offer and acceptance—a mutuality—a meeting of minds; or no contract can exist. (Story on Cont. § 378.) 2. We claim that 'the law of contracts and of public policy preclude the defendant from limiting.liability as attempted by these conditions. The liability of a carrier rests on the policy of the law, independent of contract. (29 N. Y. Rep. 115.) The conditions are without reason or justice. They are that the company will not be responsible for errors or delays - beyond $50 if repeated, and if not repeated that they will not be liable beyond the amount paid for transmission, unless specially insured, and that no one but .the superintendent is authorized to make such special agreement for insurance. Thus the whole object of the person attempting to use the telegraph is frustrated. ’ His object is haste. By these conditions he is forced to telegraph twice. He must seek the superintendent, and make with him a contract of insurance. He must then abandon the motive which prompts the use of the telegraph. If this delay must precede accuracy, the public mails will afford a cheaper, safer, more accurate and more expeditious mode of communication. He finds a company holding itself out to transmit his message. He pays then-price, and has a right to expect them to deliver it without examining a long list of technical and ex parte conditions. The defendant contracts as well to deliver as to transmit the message delivered to them. (Foy v. Troy and Boston R. R. 24 Barb. 382.) In Dryburg’s case, (cited ante,) it was held that where a message was sent subject to the same conditions as here, the conditions, if competent, did not excuse the defendant for sending or delivering a different message from the one ordered. Judge Woodward says : “ One of the plainest of their obligations is to transmit the very message presented.” (Dryburg v. N. Y. and W. Tel. Co., 35 Penn. R. 298.) There it is held there is no question as to the responsibility of the defendant to the sender. ,(Opinion of Sharswood, J.) In Birney v. Same, where a message ordered, subject to the same conditions, was forgotten by the operator, the defendant was held liable for full damages. (Birney v. N. Y. and W. Tel. Co., 18 Maryland R. 341.) It is submitted that the company should be held equally responsible' where they transmit the lorong message as where they forget the right one. The consequences may be the same to the sender, but in this case jire far worse. In McAndrew v. Mag. Tel Co., (17 Conn. R. 3,) where the conditions were held to release the defendant, the plaintiff had actual notice, and his acquiescence in them seems to have been the point in the minds of the court. In Camp v. West. Un. Tel Co., (1 Metcalf, Kentucky, R. 167,) the court say that there was no express contract, but that the conditions were a notice of which the plaintiff had knoioledge, and acted under, and decided the case on that point. The decision is an authority for the plaintiffs here, inasmuch as it holds that acting under the conditions is no evidence of an express contract, and it can not be used against the plaintiffs, because it holds that the conditions are a mere notice, and by the decisions cited ante, a notice will not help the defendant. (1 Kern. 485-490, 25 N. Y. Rep. 445.) 3. The taking off and delivering a different message than the one sent, is negligence. A message sent will not change upon the wire, and a competent operator will take off the same that was put on. It was held in Dryburg’s case, (ante,) that had the message been insured under these conditions, -it would have made no difference, where the wrong message was delivered; that what the company insure against is not the negligence of their employees, but the delays and mistakes which are unavoidable. (Opinion of 
      
      Sharswood, J. 35 Penn. R. 300.) Ho conditions will exempt from negligence, and it can not even be contracted against. (1 Kern. 485. 4 Seld. 375.)
    III. The measure of damages is the whole loss of the plaintiffs as established in the case, rvith interest. It is the direct and immediate loss sustained from the error of the defendant, and is completely within the rule laid down in Griffin v. Colver, (16 N. Y. Rep. 489-494.) If any thing can be supposed to have entered into the contemplation of the parties when the message was ordered, it can be nothing else than the,price of gold and the sum which the amount ordered would cost. The loss- upon the surplus over the order is the loss sustained by the error of the defendant. The law aims at complete compensation for the injury sustained. (Sedgwick on Damages, ch. 3. 16 N. Y. Rep. 494.) The case shows that notice was immediately given to the defendant and a tender made, which having been refused, the sale was made. In Hodson v. Wash. Tel. Co., a message ordering the purchase of five hundred bales of cotton, was delivered by the company twenty-five hundred bales, and it was held that the defendant was liable for the loss on the sale of the surplus above the order, after notice given and tender refused by the company, and that the measure of damages was the loss on such resale, together with all charges and factor’s commissions. (Hodson v. Wash. Tel. Co., 15 Grattan, (Va.) 122.) In Paries’ case, (cited ante,) a judgment was reversed because only the price paid for transmission was allowed as damages, and it was held that the entire damage sustained by the plaintiff should be recovered, to wit: the' whole debt, which but for the error and delay of the company he might have secured by attachment. (Parks v. Cal. Tel. Co., 13 Cal. Rep. 442.) In Stevenson v. Montreal Tel. Co., the Queen’s Bench held that the measure of damages was the entire injury directly and naturally arising from the company’s default. In Lockwood v. Independent Tel. Co., (ante,) the court held that the measure of damages was the cost price with the cost of manufacturing, less the amount for which the goods were sold. The principle upon which the damages in Landsberger v. Mag. Tel. Co., (32 Barb. 530,) were limited to the price paid for transmission and' -the interest on the money called for by the telegram during the time it was delayed, seems to have been because it did not contain sufficient to bring .within the contemplation any other item than interest, as required by the rule in Griffin v. Colver, (16 N. Y. Rep. 498.) The court say (on. page 532) that it is “ perfectly clear that the defendants "are liable for all the items of damage,” and it is difficult to see how they reconcile this opinion'with the decision. But (if that case was well decided) it is submitted that the telegram in this case conveyed all the information possible, and that it was amply sufficient to bring within the contemplation of the parties the loss which might accrue from an error or default.
    IV. The judgment of the court should be in favor of the ' plaintiffs for $1244.25, with interest from March 16, 1865.
    
      G. P. Lowrey, for the defendant.
    I. If the defendant' is liable at all in this action, it is either as a common carrier, or an ordinary bailee for hire ; and if the plaintiffs are entitled to recover, it 'must be upon one of the following hypotheses : (Treating the defendant as a common carrier.) 1. That it is unable by any contract, special acceptance, or notice, to relieve itself from liability for losses not happening by the act of God or the public enemy; or, 2. That being able, by one of these modes, to limit its liability, it did not do so ; or, (Treating the defendant as an ordinary bailee for hire.) 3. That, notwithstanding the terms of the printed blank on-which the message was written, the defendant was responsible for any negligence on the part of its servants; and that the error was caused by negligence.
    ' II. Even if the defendant is in law a common carrier, it is not liable in this case. This proposition is easily sustained by considering as to the carrier's liability, .the policy by which it is imposed, and the criterion by which it is measured. (As to the-criterion by which it is measured.) 1. The liability of carriers is peculiar in respect that it is imposed by law and is not to be avoided by act of the carrier alone; but this liability is varying and not absolute, the true criterion of liability being the degree of control which the nature of the article or the circumstances of the case enables the carrier to exercise over the thing carried. Thus, (a.) The carrier of dead or immobile goods is, in the absence of special contract, an insurer for safe delivery against all causes of prevention hot arising out of the act of Grod or the public enemy. (6.) The carrier of living animals is only bound to the utmost diligence, and having exercised that, he is no further liable. (Clarke v. The Rochester and Syracuse R. R. Co., 4 Kern. 572.) (c.) The carrier of slaves “is liable only for ordinary neglect,” when paid for the carriage. (Boyce v. Anderson, 2 Pet. S. C. Rep. 150.) Or, when not paid, for gross neglect only., (Angell on Carriers, § 122.) And the same rule applies to carriers of passengers. (cZ.) W.hen the owner of goods accompanies them, to take charge, the carrier is responsible only for injuries happening through his own unlawful act or neglect, in the transportation merely. (As to the ;policy by which it is imposed.) 2. Says Lord Holt, in Coggs v. Bernard, “This” (the rule making common carriers insurers of a safe delivery) “is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs obliges them to trust this sort of persons, that they may be safe in their dealings. For else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, &c. and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in- that point.” Thus this policy is seen to be based upon that distrust which Judge Story, citing an ancient writer, calls “the sinew of wisdom;” arid as like reason makes like law, the rule was by the common law also applied to carriers by water, innkeepers and stable keepers. (Story on Bailm. § 490.) An auxiliary reason, which doubtless entered into the policy of the law in this respect, was the same which furnishes the measure of the carrier’s liability, viz. that being in corporeal possession of the thing to the exclusion for the time being of the owner, the carrier was the only person who could protect it, and ho was deemed able to protect it against all injuries not arising from the excepted perils. 3. Regarded as a technical common carrier, still it must be plain that the defendant is not within the policy of the rule; and an application of the criterion will dissipate the idea that it has any possession of any thing, or any such control over the subject matter of its employment as to justify its being held to the hard measure of responsibility which a carrier of goods justly bears. (a.) That which the telegraphic operator receives is merely an idea which can not be the subject of robbery or misappropriation. (b.) The possession which he acquires of it is a mental possession merely, and having received it, the author or owner has parted with nothing. In its nature the thing or idea committed to the operator has no relation to space; can not be transported; needs and can receive no protection, being inherently indestructible. As the operator sends it nowhere, he does not go with it to protect it, and never has any such 2>ossession or control of it as may be had of material things. What precisely the operator does, and what the legal character is which he assumes, may be more properly considered under another view of the case. 4. Still regarding the defendant as technically a carrier, it must be seen that it is sui generis, and if it is to be treated as having liabilities imposed by law, in addition to those expressly arising from its contracts, the law must first hear what functions or services it-promises to perform. If it may not limit its liabilities for misperformance of its functions, it may at least define what, precisely, it undertakes to do for one price, and what for another. As the business is new, the telegrapher must 'be permitted to say what things are necessary to make it certain that a person in New York shall receive the mental impression-intended by a person in Palmyra. By the notice in this case, the telegrapher virtually says, “The nature of this business is such, that I can not, myself, know whether a message is correctly transmitted, or indeed, whether it is transmitted at all, unless it is telegraphed back to me, to be compared with the message which I intended to communicate. That is, since I speak over hundreds of miles, I must know from the receiver what he has heard, if any thing, before I can know whether he has rightly understood me. Ordinarily the message will go correctly, but the action of the elements, the malice of persons along the line, over whom I have no control, and the imperfections of the vocabulary which I am compelled to use, may at any time confuse or utterly destroy my communication, and that without my being aware of it. For such persons as. are willing themselves to take the risk of a correct transmission, I will do the best I can for a certain price; from such as desire me to assume the risk and responsibility, I must receive another price, to compensate me for the extra labor which then’ wish, in that respect, entails upon me.” The proposition of the telegrapher is not, therefore, to carry safely at all events; but to carry safely if certain necessary conditions of safety are provided by the sender, i. e. paid for by him. 5. The terms of the printed message blank voluntarily used by the sender constitute a valid defense in this case, (a.) The message being written upon the blank, and signed under the printed request, “ Send the following message subject to the above conditions and agreement,” constitutes a binding agreement between the parties and special acceptance by the defendant. It was the duty of the plaintiffs’ agent to read the conditions; and the defendant’s agent was justified, on receiving the message in the form in which-it was presented,' in supposing the conditions had been read and assented to. (Am. Law Reg. Nov. 1865, p. 10.) And it is competent for a common carrier to make such a contract. 
      (Bissell v. N. Y. Cent. R. R., 25 N. Y. Rep. 442. 5 Hurlston & Norman, 867.) (b.) Considering the terms of the message blank as merely a regulation of the defendant, and not an agreement, it is valid. The statute authorizes the making of such a regulation; it is reasonable; the possession of the blank was notice to the plaintiffs ; and even without actual notice, they are charged with constructive notice of all regulations made under a statute. (Laws of 1848, ch. 265, § 11. McAndrews v. The Electric Tel. Co., 33 Eng. L. and Eq. R. 180. Birney v. N. Y. and Wash. Tel. Co., 18 Maryland R. 357. Camp v. West. Un. Tel. Co., 1 Metc. 164. S. C. 6 Am. Law Reg. 443.)
    III. The defendant is not a common carrier, or a carrier of any sort; but is an ordinary bailee for hire to perform a special service, and as such, liable only for negligence or want of skill, which must appear affirmatively, (a.) According .to all the definitions, a common carrier is one who undertakes to transport goods; and the person having chosen a public employment, and offered himself as a common servant, the-law, on account of special considerations relating to carriage of goods and to no other employment, has imposed upon him a liability characteristic of his class. That the telegraphic operator is not a carrier-of any thing, or within the policy of, or subject to the'rules of law applicable to common carriers, has been discussed above. (6.) The telegraphic operator being possessed of mechanism by which certain magnetic action can be produced in Hew York, over a free conductor of electricity, undertakes to make certain manipulations at Palmyra, which will probably produce certain effects in Hew York, and which effects, being produced in a certain order and rightly understood, will bring the mind of the operators at the respective termini to an agreement or common understanding on a certain subjéct. The principal object in view by the employer of the telegraph in this case was to induce Caminan & Co. to purchase certain gold for him. In and about this principal object the telegrapher acts as a simple bailee to notify Camman & Co. of the wishes of the plaintiffs ; which they may afterwards he willing or able to comply with or not. (c.) The employment of the telegrapher would, therefore, seem to be a pure bailment, locatio operis. faciendi, requiring on his part, as legal obligation, requisite skill, good faith, care, and diligence, and subjecting him to liability only in case of the lack of one of these. (Birney v. N. Y. and Wash. Tel. Co., 18 Maryland R. 753. 2 Parsons on Cont. 133, 5th ed. Platt v. Hibbard, 7 Conn. B. 501.) (d.) No negligence or want of skill appears in this case. The error may have arisen from negligence of an operator, but is more likely to have arisen from some atmospheric or other cause unknown, dissipating, weakening or confusing the magnetic current.' It is confidently assumed, that upon such a state of facts, touching an employment .so hazardous and uncertain, the Court will not infer negligence from an error insusceptible of explanation. It is believed, on the contrary, that the fact that it can not be explained is almost conclusive that the cause of the error was uncontrollable, and incurable, except by the repetition which the plaintiffs declined to pay for. In such a case as this, the carrier or bailee is liable only for negligence, and the burden of proof is on the plaintiff. (N. J. Steam Navigation Co. v. Mer. Banh, 6 How. 314.)
   By the Court, Johnson, J.

It must be held, I think, that the printed heading to the paper on which the message, delivered to the defendant for transmission, was written, was, under the circumstances, something more than a mere notice to the plaintiffs’ assignor, by whom such message was writ- . ten, signed and delivered. Before the message was written under it, and signed, and delivered to the defendant, it was a general proposition to all persons desiring to send messages by the defendant’s peculiar means of transmission, or conveyance, of the terms and conditions upon which such messages would be sent, and the defendant became liable in case of error or accident in the transmission or conveyance. By writing the message under it, and signing and delivering the same for transmission, the party accepted the proposition, and it became an agreement, binding upon the defendant, only according to the terms and conditions specified in its proposition. That such is the legal effect of the arrangement, under which the message in this case was received for transmission by the defendant, seems to me extremely clear. Under the date of the message and the name of the place from which it was sent, was printed in large clear type, “ Send the following message subject to the above conditions and agreement.” Directly under this the message was written and signed by the plaintiffs’ assignor. There is no pretense that the “ conditions and agreement” there referred to, were not plainly printed, or that there was the least difficulty in reading and understanding the terms proposed by the defendant.- There they stood, in clear plain print. First, a general statement, that, “ in order to guard against errors or delays in the transmission or delivery of messages, every message of importance ought to he repeated by being sent back from the station to-which it is directed, to the station from which it is sent, and compared with the original message.” Following this is the tariff or rate charged for such repetítidn and comparison, as follows : “ Half the tariff price will he charged for - thus repeating and comparing.” Then follow the terms and conditions, in this language : “And it is hereby agreed between the signer or signers of this message that this company shall not be held responsible for errors or delays in the transmission or delivery of this message if repeated, beyond the amount of fifty dollars, unless a special agreement for insurance be made and paid for at the time of sending the message and the amount of the risk specified in this agreement, and that in case this message is not repeated, this company shall not he .held responsible for any error or delay in the transmission or delivery of the same beyond the amount paid for transmission, unless specially insured and the amount of risk paid for and specified in this agreement at the time.” Here is no ambiguity whatever, but on the contrary the language is well chosen and the meaning anc^ import perfectly clear and obvious to the most indifferent on careless reader.

The price for transmission, only, was paid. There was no request to have the message repeated, and nothing was paid, or offered, therefor, and -no insurance. The defendant is therefore exempt from all liability, for the mistake or error complained of, by the express terms of the agreement.

It is stated, in the case made, that neither the person who signed the message, nor the plaintiffs, ever read the printed “conditions and agreement” thus subscribed. But it does! not follow from this, by any means, that they are not bound by the conditions. They might and should have been read. It was very gross carelessness and negligence not to read them before signing and delivering the message. Ho notice was given to the agents of the defendant, that the conditions and agreement to which the author and signer of the message had in terms agreed the same should be subject, had neglected to read them, and inform himself as to their import. The presumption, in -the absence of any notice, was, that he had read and understood the proposition he had thus accepted; and the defendant’s agents had the right to take it for granted that he had, and will be presumed to have done so, and to have sent in good faith the message upon the terms thus proposed and apparently accepted. The plaintiffs should not now be permitted to allege that their assignor, either wilfully shut his eyes and refused to see what was so plainly before him, or that he negligently omitted to use them for that purpose. To allow them now to do this, would operate as a fraud upon the defendant. It would enable one party through his own gross negligence and inattention, to create a liability against another in his own favor, where none was bargained for, or would have been, and which was expressly stipulated against. The principel of estoppel in $>ais applies in full force against the plaintiffs’ claim. Their assignor, by his conduct, led the agents of the defendant to suppose and believe that he had agreed to the defendant’s propositions, and they can not now gainsay the apparent agreement. In Lewis v. The Great Western Railway Co., (5 H. and N. 867,) which was a case where the person delivering goods to a carrier filled up and signed a receiving note under a printed head of Conditions,” under which'were certain printed conditions, and which the party afterwards, in an action for the loss of the goods, claimed not to have read. Baron Bramwell said: It would be absurd to say that this document, which is partly in writing and partly in print and which was filled up, signed and made sensible by the plaintiff, was not binding upon him. A person who signs a paper like this must know that he signs it for some purpose, and when he gives it to the company must understand that it is to regulate the rights' which it explains.”

I can not refrain from observing here, that the business in which the defendant is engaged, of transmitting ideas only from one point to another, by means of electricity operating upon an extended and insulated wire, and giving them expression at the remote point of delivery, by certain mechanical sounds, or by marks, or signs, indented, which represent words or single letters of the alphabet, is so radically and essentially different, not only in its nature and character, but in all its methods and agencies, from the business of transporting merchandize, and material substances, from place to place, by common carriers, that the peculiar and stringent rules by which the latter is controlled and regulated, can have very little just and proper application to the former, And all attempts heretofore made by courts to subject the two kinds of business to the same legal rules and liabilities will, in my judgment, sooner or later, have to be abandoned, as clumsy and undiscriminating efforts and contrivances to assimilate things which, have no natural relation or affinity whatever, and at best but a loose or mere fanciful resemblance.

The bearer of "written or printed documents and messages^ from one to another, if such was his business or employment, might very properly be called and held a common carrier; while it would obviously be little short of an absurdity to give that designation or character, to the bearer of mere verbal messages, delivered to him by mere signs or speech, to communicated in like manner. The former would have something which is, or might be, the subject of property, capable of being lost, stolen and wrongfully appropriated; while the latter "would have nothing in the nature of property which could be converted, or destroyed, or form the subject of larceny, or of tortious caption and appropriation, even by the “ King's enemies.” But even if the defendant is held to be an ordinary common carrier, it had the right to limit its liability by express contract, as is now well settled. (Bissell v. New York Central Railroad Company, 25 N. Y. Rep. 442. Dorr v. N. J. Steam Navigation Co., 1 Kern. 485.)

In MacAndrew v. The Electric Telegraph Co., (17 Com. B. 3, 84 E. C. L.) it we£s held that a mere regulation of the corporation, similar to the one here in question, was a reasonable regulation under the act of 16 and 17 Vict. and shielded the corporation from liability for the mistake of sending the message to Southampton instead of Hull. And so in Camp v. The Western Union Telegraph Co., (1 Metc. Ky. R. 164,) it was held that a printed nótice similar to the conditions here, not in the form of an agreement,. was a reasonable regulation in behalf of the company, and binding upon the person delivering the message to be transmitted. Our statute providing “for the incorporation and regulation of,telegraph companies,” (Sess. L. of 1848, ch. 265, § 11,) makes it the duty of the owner of any telegraph line, doing business within this state, to receive dispatches, and on payment of their usual charges, for transmitting dispatches “as established by the rules and regulations of such telegraph line, to transmit the same with impartiality and good faith,” under a certain prescribed penalty. Thus the statute, it will be seen, recognizes the right of the owners of these lines of communication to establish “rules and regulations” for the transmission of communications delivered to he forwarded, in nearly the same terms as the act of 16 and 17 Vict. The legislature obviously never intended that these corporations, or persons, engaged in this novel, interesting and extraordinary business, should be placed upon the same footing in respect to liability with ordinary carriers of goods.

[Monroe General Term,

March 5, 1866.

There is nó question here of gross negligence, against which the defendant could not, as carrier even, shield himself by contract. The tease states that the message was duly transmitted from the office at Palmyra, as written and delivered, “but by error of some of defendant’s operators, working between Palmyra and Sew York, the precise cause of which is unknown,” it was received in Hew York and delivered as an order to purchase $7000 in gold instead of $700, according to the message delivered and duly transmitted at Palmyra. In view of the nature of this business, and of the peculiarly delicate and subtle agencies and forces employed in carrying it on, it is impossible for the court to say, from this statement, that the error complained of, was the result of any negligence or inattention whatever on the part of the agents employed by the defendant. For aught we can see, it may have been produced by causes over which no person had any control. And these considerations show, most forcibly, the importance and necessity of allowing those carrying on this business, the right to make rules and regulations and contracts limiting and controlling, to a reasonable extent, the grounds and measure of their liability.

For the foregoing reasons, I am of the opinion that the facts stated in the case made do not entitle the plaintiffs to any recovery. The defendant must therefore have judgment for its costs.

Welles, E. D. Smith and Johnson, Justices.]  