Imágenes de páginas
PDF
EPUB
[merged small][ocr errors][merged small][merged small]

It is contended for the appellant that assignment of wages to be earned are, like mortgages of property to be thereafter acquired, void. It is insisted upon the other hand, that as these wages were to be earned under an existing contract, the wage-earner had the right to assign them, and that this contest is merely one of equities, in which the elder must prevail. This is undoubtedly true if the right existed, because in a contest between equities merely that which is prior must in reason be given the preference. Newby v. Hill, 2 Metc. (Ky.) 530. This elementary rule is not questioned by counsel for the appellant; but they insist that the appellee, by his purchase, acquired no equity whatever as against a creditor of Manly. Looking at the question from the standpoint of public policy, there are two views presented, which perhaps balance each other. If the wage-earner, in a case like this one, be permitted to sell and transfer his unearned wages, the honest creditor may sometimes be defrauded; but, upon the other hand, it may often be necessary to the subsistence of the laborer and his family, as is claimed was true in this instance. It is a general rule that a mortgage of property to be acquired in futuro is void as against the mortgagor's other creditors. It has been held by this court, for instance, that he cannot mortgage not only his stock of goods on hand, but also those he may thereafter add to it. As to those so added the mortgage is invalid as against other creditors. Ross v. Wilson, 7 Bush, 29; Loth v. Carty, 85 Ky. 591. Also that a mortgage of a crop unsown when it was executed is invalid as against a purchaser for value, the reason being that when the mortgage was given the crop had neither an actual nor a potential existence. Hutchinson v. Ford, 9 Bush, 318. This case, however, is distinguishable from those. Pomeroy says: "When a party has entered into a contract or arrangement by the ordinary and legitimate and natural operation of which he will acquire property, his existing right thereunder is not a mere naked hope; it is a possibility of acquiring property, coupled with a legal interest in the contract. The cargo to be obtained, or the freight to be earned, by a ship on a voyage already contracted for, the wages to be earned under an existing employment, the payment to become due under an existing building contract, are familiar examples." Pom. Eq. Jur. § 1286. Judge Story, in his Equity Jurisprudence (section 1040), announces substantially the same doctrine. If there be an existing or subisting contract, then a right exists out of which that which is assigned may be derived; and, as it may easonably be anticipated as the outcome, it may be

transferred for value, and vest the right to it in the assignee. There is in such a case a potential existence of that which is assigned. In the case now presented there was an existing, subsisting contract for the rendition of the services. The debtor's term of office extended beyond the time when it could fairly be presumed, because of the existence of the contract, the wages would be earned. They had such a potential existence that he had a right to transfer them, and, having done so for value, it invested the assignee with an equity which, being elder in time to that of the attaching creditor, must prevail. It was not the assignment of a mere naked possibility, coupled with no interest. There was an expectation of wages under an employment entered upon under a subsisting contract. Whatever Manly might therefore earn had a potential existence, because the wages would be the expected and natural product of his existing contract right. It made no difference whether they were fixed at so much by the day or week or month. Whatever he might earn upon the first day of the month was not so independent of what he might earn during the remainder of the month that he could not assign the entire month's wages. Whatever may be said as to the right in equity to assign mere possible interests, however much the authorities may differ as to the extent of the power, yet here was a reasonable expectation of means founded upon an existing right-a subsisting contract, an existing employment-and in such a case the transferee for value undoubtedly acquires an equity. A right was in esse, under which it could reasonably be expected the party would be. come entitled to what was transferred. There was ground for a reasonable expectation of means based upon an existing right. It was as if the seed of a crop had been sown, and constituted a subject for a valid contract. In the case of Griffin v. Mulliken (MS. Op. Sept. 13, 1876, not reported), an attaching creditor sought to subject the monthly salary of a city officer to his debt, which had been assigned before it was earned, and it was held that the equity of the assignee was superior. So it seems to us in this instance, and the judgment is therefore affirmed.

ACCORD AND SATISFACTION CONDITIONS PRECEDENT-DEFAULT-RELIEF.-In Francis v. Deming, the Supreme Court of Connecticut hold that an offer after judgment and filing of the lien, to discharge the same, if within a certain time a certain amount should be paid and certain other things be done, is when not accepted a condition precedent; and in case of non-performance neither law nor equity can furnish relief, where the only excuse is that defendants went to the office of plaintiff's attorney within the time specified, prepared to make the payment and do the other things required, but found that the attorney was at home sick. Thayer, J., says:

The agreement, if the condition is fully performed constitutes an accord and satisfaction of the judgment, and is a bar to the action. Unperformed, it is a mere accord, and does not bar the action. Williams v. Stanton, 1 Root, 427; Scutt's Appeal, 43 Conn. 109. This is admitted by the defendants, but it is claimed that, in law, what has been done by them constitutes

performance. When money is to be paid by one party to another, and the contract fixes no place for the payment, the rule is that the payment must be to the person at the place where he is, if he be within the same dominion. 1 Swift, Dig. 292; 2 Pars. Cont. 636. Parke, B., in Startup v. McDonald, 6 Man. & G. 624, says: "In such a case the party bound must find the other at his peril, and within the time limited, if he be within the four seas." Here no place was fixed for the payment. It was the defendants' duty, therefore, to seek the plaintiff or their duly-authorized agent or attorney, and make tender to them within the time limited. This they did not do. Calling at the office of the attorney, prepared to pay, does not meet the requirements of the law. Deming there learned that the attorney was at his house. He made no tender of the money and release at the office to the person in charge. He did not seek the attorney at his house and tender them to him. Nor did he seek the plaintiff, who reside in an adjoining town, and tender performance to them. The allegations of the answer show no excuse for his failure to do so. No waiver of performance within the time limited is claimed. As the tender after the action was begun was of the money only, and did not include either interest or the costs which had accrued, it was not a legal tender, and would not entitle the defendants to a discharge.

But the defendants urge that this is a proceeding in equity, and that the rules of equity are not so stringent as those of law concerning the necessity of a tender within the time limited, and that, as the answer shows that they were on July 10.b, and still are, ready and willing to perform, the demurrer should have been overruled. When a condition is subsequent, and is broken, equity will generally relieve the party in fault if he shows sufficient excuse for non-performance within the time specified. In the present case the defendants had no right to a discharge of the judgment, except upon the performance of the condition within the time. The performance of the condition was the consideration for the plaintiff's promise to discharge the judgment. In such a case where the rights of a party in default are dependent upon a condition precedent which is neither fulfilled nor waived, as no right or title vests, equity can afford no relief. Davis v. Gray, Wall. 203; Fiddings v. Insurance Co., 102 U. S. 111; Wells v. Smyth, 2 Edw. Ch. 78; Mills v. Hoag, 7 Paige, 21; Seton v. Slade, 2 White and T. Lead. Cas. (Har. & W. Amer. ed.) 1143. This case presents no equities in the defendants' favor. The plaintiffs agreed if the defendants performed within month, to accept nearly $300 less than was due them upon their judgment. The return of the probate notice the defendant Deming was legally bound to make. The release he has never tendered. Under these circumstances, showing no excuse for non-performance, neither law nor equity can afford any assistance.

one

FOREIGN LAW PROOF-PRESUMPTION.The Court of Appeals in In re Gehrig's Est., 27 N. E. Rep. 784, decide that when proof of a law of a foreign country has been given from a publication made under governmental authority, the presumption is that such law is still in force, in the absence of some equally good evidence that it has been amended or repealed; and that a community which, by the unwritten law of the country in which it

lies, confirmed by a public statute, is entitled to take, hold and manage property in the right of its citizens, as a corporation aggregate, may take a legacy in New York. Gray, J., says:

The surrogate expressly found that the legatee had been a municipal body for the past 900 years, but refused to find that by the unwritten or by the written law of the country it was authorized to take and hold bequests of personal property, or to hold personal property as a corporation. In so ruling upon the question of the legatee's legal capacity, I think the surrogate has erred. By a competent witness, in the person of the German vice-consul, who, before entering upon the foreign service of the German Empire, bad filled a judicial position and was acquainted with the laws of the different States comprising that Empire, it was proved that the Grand Duchy of Baden had an unwritten and a written law. By the unwritten law of the county, "communities," by which term a city or township was characterized, had a right to ac quire and to manage property, and to take by bequest. A copy of the laws and statutes of the Grand Duchy, printed by governmental authority in the official printing-office in 1832, was offered in evidence, and from it proof was given that "every community has a right to administer its affairs as a community, and to manage property independently for itself;" and that "all movable and immovable property of communities, is the property of the citizens," as a "corpora. tion," or "as a body," or "as a whole," (the German word in the act being the equivalent of these terms). This witness gave the only evidence in the case, and nothing was offered in contradiction of it, nor any other proof given upon the question of what was the law of the domicile of this legatee. But because it appears that, since this publication of the Grand Ducal laws and statutes in 1832, a legislature has been in existence, and that the evidence of the witness that these statutes and the unwritten law, concerning which he had testified, remained in force, was predicated upon the fact that, by virtue of his official position, he would have been made acquainted with any changes by legislative enactment, it was thought that the proofs were insufficient. The surrogate held that it must be shown that the law relied upon to establish the corporate capacity was in force at the time of testator's death, and that the evidence here was merely hearsay, and therefore incompetent. He also held, upon the authority of Hynes v. McDer mot, 82 N. Y. 41, that there was no presumption of the continued existence of the earlier law. That case is not controlling upon the question here. The books offered upon the trial in that case, as containing the laws of France, were the publication of a private person. They were not proven nor did they purport to have been published by governmental authority, and were there seen for the first time by the witness. Moreover, one of the volumes was edited at a date subsequent to the transaction to which they were sought to be made applicable. Nor was it considered that the evidence of the witness as to the reception of these private works in the French courts amounted to proof of that fact. Upon the question of whether the presumption should prevail that a law once shown to have existed continued the same until the time of the event, about which the controversy turned, the court refused to pass definitely, as being unimportant to the decision. Chief Judge Folger intimated, however, pretty strongly on the authority of Raynham v. Can.

ton, 3 Pick. 293, that, if the question of presumption was in the case, the court would have to make it. In Raynham v. Canton, in connection with proofs relating to a marriage in Rhode Island in 1817, a volume of the laws of that State, published by its authority in 1798, was offered; but it was rejected upon the mere objec tion or denial interposed by counsel that the law so evidenced was not the law at the time of the marriage. Judge Parker, delivering the opinion of the supreme court, in reversal of the judgment, held that, "the law being proved to have existed in the manner above stated, it must be presumed to exist until proved by as good evidence to have been repealed." I think the rule in the Massachusetts case should be adopted by us as correct, upon principle. The rule of presumption, as applied to the continuance of a law, may well rest upon the same basis that is found for similar presumptions in many human affairs. In Greenleaf on Evidence, (volume 1, § 41), the author states the rule that "when the existence of a person, a personal relation, or a state of things is once established by proof, the law presumes that the person, relation, or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised from the nature of the subject in question." In People v. Manhattan Co., 9 Wend. 351, is an illus tration of the rule, where it was held that, a corporation having been shown to have been legally created, it is "in judgment of law supposed to continue to exist until the contrary is shown." If in such instances the presumption should obtain, how much greater the reason for it in the case of a public law in a foreign State or country. In addition to the Massachusetts case of Raynham v. Canton, there is to be found authority for the rule in the opinions of the courts of other States. In People v. Calder, 30 Mich. 85, the question arose as to the law governing marriage in the State of New York in 1869. A volume of New York Statutes, printed in 1852, was held to be competent proof of what the law was; the court considering that, as no proof was offered to indicate any change in the law, the jury might fairly presume that it continued as it was. In Harryman v. Roberts, 52 Md. 64, a volume of Ohio Revised Statutes, published in 1860, was admitted as evidence of the existing law of that State, when the question to which it was made applicable arose in 1879. And see State v. Patterson, 2 Ired. 346. It may be observed that the very notion of a law, as furnishing a rule of government or of conduct, suggests permanence as a characteristic, and does not involve the idea of change. I am led to the opinion that, when proof of a law of a foreign State has been given from a publication made under governmental authority, the rules and principles of evidence entitle it to be considered as the existing law of the land, in the absence of some equally good evidence that it has been changed or repealed.

[blocks in formation]

its officers and books, was absolutely necessary, and that the information could not be otherwise obtained, and prayed for such discovery and proper relief. It was held that the necessity for a discovery was sufficiently shown to give a court of equity jurisdiction, and that, though the claim was purely legal, the court, having acquired jurisdiction, should retain the cause, and grant full relief. In a suit against a corporation, in which a discovery is sought, the officer from whom the information is to be obtained should be made a co-defendant. Clopton, J., says:

It is well settled that when there is no fiduciary relation between the parties devolving the duty to render an account, and the accounts are not mutual, equity has not original and independent jurisdiction in the matter of account, unless there is so great complexity and intricacy that a jury cannot examine and state it with the necessary accuracy. State v. Bradshaw, 60 Ala. 239; Hudson v. Vaughan, 57 Ala. 609. The ascertainment of the profits that would have been realized by complainant involves the quantity of coal mined and controlled by defendant at the different mines, the market prices at each, and the cost and expense of transportation and sale in the different markets; but, these data being ascertained, the profits become a matter of mere addition and subtraction, the only difficulty consisting in the number of items. In Dickinson v. Garthwaite, 34 Ala. 638, the accounts involved the manufacture and furnishing large quantities of articles of clothing during a series of years from three different places, at a profit of a designated per cent. on the original cost. It is said: "The account was for clothes furnished to the complainants during a series of years, and differs from the ordinary accounts of merchants, in this: that the charging was controlled by a contract made at the inception of the account. There was no mutuality of accounts. On the complainants' side there was only a claim of credits for payments made. There was noth

ing more, therefore, than an account on one side with credits for payments made. Of such an account chancery has not original and independent jurisdiction." And while it was said that equity will entertain jurisdiction in some cases where there is no mutuality, it was held that the account did not present that strong case of entanglement or complication which is necessary to maintain the eqnity jurisdiction. The averments in the present bill, though showing difficulty in establishing the necessary data from which to state the account, do not show any great complexity. But the bill is framed for discovery as well as for relief; and, notwithstanding the accounts may be on one side only, and there may be no great complication, when a discovery is needed in aid of the account, and is obtained, the court will entertain jurisdiction for the purpose of final relief. Discovery itself is an acknowledged independent source of equitable jurisdiction, but the jurisdiction is auxiliary, and a suit for that purpose must be limited to the legitimate functions of furnishing evidence in aid of a pending or anticipated action. The pendency of such action, or its anticipation, and that the discovery will be material to support the plaintiff's cause of action or the defendant's defense, as the case may be, must be averred. The bill is not framed and cannot be treated as a bill for discovery merely. It invokes

exercise of the jurisdiction of a court of equity, which necessitates a hearing and decree on the rights of the parties. This constitutes it a suit for relief, and liable to all the incidents of that proceeding. Story, Eq. Pl. § 314. Therefore the question whether the bill is demurrable on any of the grounds assigned must be determined by the rules and modes of procedure peculiar to bills for discovery and relief.

The general rule is that, when equitable jurisdiction attaches for a rightful purpose, the court will retain it, and proceed to settle and adjudicate all the matters in controversy, granting complete relief, though it may involve the adjudication of purely legal questions. As a corollary from this rule, many courts hold that when jurisdiction is acquired in a suit having the direct and primary purpose of discovery proper, the court will proceed to grant whatever relief the complainant may be entitled to, though the matter involved is not independently within the equitable jurisdiction, and the remedy at law is adequate. In such cases, the retention of jurisdiction for the purposes of final relief is consequential, and has no foundation on which to rest, when the primary and principal ground of jurisdiction fails. That honored and most learned jurist, Chief Justice Marshall, stated the rule in the following broad terms: "That if certain facts, essential to the merits of a claim purely legal, be exclusively within the knowledge of the party against whom that claim is asserted, he may be required, in a court of chancery, to disclose those facts; and the court, being thus rightly in possession of the cause, will proceed to determine the whole matter in controversy." This statement was qualified by the observation that the rule cannot be employed as a mere pretext for bringing causes, proper for a court of law, into a court of equity; and, if no discovery is obtained, the suit should be dismissed, though the complainant may support his claim by evidence unaided by the answer of the defendant. Russell v. Clark, 7 Cranch, 69. This statement of the rule has been sometimes regarded as calculated to mislead, in many cases, by its generality.

While the foregoing has been distinctly called the "American doctrine," the best considered cases do not regard discovery as the independent source of equitable jurisdiction to grant relief, in respect to a matter of purely legal cognizance, in a suit for discovery and relief. In such suit, the discovery is incidental, and may be the occasion for the exercise of the jurisdiction. In such cases, when the jurisdiction does not otherwise exist, it rests on the inadequacies of the legal remedies, produced generally by the operation of the rules governing the examination of witnesses and the production of books, writings, or other evidence in courts of law. This results from the limitations and restrictions upon the operation of the general rule which has been established in suits for discovery and relief. The most material and limitation is, it is necessary, where the complainant "seeks to transfer a clause appropriately of legal cognizance into the forum of equity for trial upon the ground of seeking discovery, and that alone, to allege in his bill, and verify by affidavit, that he has no other means of proving his case." 1 Story, Eq. Jur. § 74c. Says Mr. Pomeroy: "The so-called 'American doctrine,' concerning the effect of discovery upon the equitable jurisdiction, is thus practically as follows: Whenever, in a controversy purely legal, depending upon legal interests and primary rights of the plaintiff, and seeking to obtain final reliefs which are wholly legal, the plaintiff prays for a discovery as a preliminary relief, and alleges and proves that such discovery is abso

lutely essential to the maintenance of this contention; that he is utterly unable to establish the issues, on his part, by testimony of witnesses, or by any other kind of evidence admissible in courts of law, so that an action at law is utterly impracticable,-then the court of equity, having jurisdiction of such a case to compel a discovery, acquires a jurisdiction over it for all purposes, and may go on and determine all the issues, and decree full and final. relief, although the relief so given is of the same kind as that granted by the courts of law in similar controversies." (1 Pom. Eq. Jur. p. 235, § 230;) the defendant making actual discovery by his answer. In Insurance Co. v. Webb, 54 Ala. 688, it is said: "But if the bill is framed for discovery and relief, and seeks to withdraw from the jurisdiction of courts of law matters of purely legal cognizance, it must be shown the discovery is indispensable to the end of justice, and, because of the inability of the court of law to compel it, the jurisdiction of a court of equity arises, as it arises generally, because of the inadequacy of legal remedies." The same rule has been declared in the following cases: Shackelford v. Bankhead, 72 Ala. 476; Handley v. Heflin, 84 Ala. 600, 4 South. Rep. 725. It was also held in these cases that this well-established jurisdiction of chancery is not affected by the statutory provisions authorizing the examination of parties as witnesses in courts of law. It follows, from these limitations and restrictions upon the general rule referred to above, that the source of the equitable jurisdiction, in matters of legal cognizance, arises from the inadequacy of the legal remedies, such inadequacy growing out of the necessity of a discovery to effectuate the ends of justice.

CIPHER TELEGRAMS.

§ 1. Application of the Rule of Hadley v. Baxendale to Unintelligible Dispatches.-The rule of damages in the celebrated case of Hadley v. Baxendale,1 will be recalled, as follows: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive, in respect of such breach of contract, should be either such as may fairly and substantially be considered as arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time when they made the contract, as the probable result of the breach of it."'2

1 Exch. 341; s. c., 26 Eng. Law & Eq. 398.

2 This rule of damages has met with general approval in American courts. McColl v. Western Union Tel. Co., 44 N. Y. Super. 487; s. c., 7 Abb. N. C. (N. Y.) 151; Candee v. Western Union Tel. Co., 34 Wis. 471; s. C., 17 Am. Rep. 452; First National Bank v. Western Union Tel. Co., 30 Ohio St. 555; s. c., 27 Am. Rep. 485; Western Union Tel. Co. v. Graham, 1 Colo. 230; s. C., 9 Am. Rep. 136; Griffin v. Colver, 16 N. Y. 489; s. C.,

§ 2. Company Entitled to Notice of Special Circumstances Enhancing Damages. The foundation of this rule is that the telegraph company is entitled to notice of special circumstances, if there be such, enhancing the damages, otherwise it will be liable for such damages only as spring from circumstances of which it may be advised by the terms of the dispatch itself.

§ 3. In Case of Cipher and other Unintelligible Messages, Nominal Damages Only.-It follows from the foreging that, where telegraphic messages are written in cipher, or in language unintelligible to an ordinary person, and are in that manner delivered to the agent of the telegraph company for transmission, without advising him of any special circumstances attaching special importance to the message, in case of its delay, erroneous delivery or non-delivery, the company will not be liable for damages springing out of such unconnected special circumstances, but will, in general, be liable for nominal damages only, or for the sum paid for transmitting the message.4

$ 4. Reason and Scope of the Rule.-The rule proceeds upon the ground that it is the

69 Am. Dec. 718; Horne v. Midland R. Co., L. R. 7 C. P. 583; Abeles v. Western Union Tel. Co., 37 Mo. App. 554; Western Union Tel. Co. v. Way, 83 Ala. 542; 8. C., 4 South. Rep. 844. The rule is explained in Leonard v. New York, etc. Tel. Co., 41 N. Y. 544; 8. C., 1 Am. Rep. 446, 452; restated in Baldwin v. United States Tel. Co., 45 N. Y. 744; s. c., 6 Am. Rep. 165, 169.

3 Western Union Tel. Co. v. Way, 83 Ala. 542; s. C., 4 South. Rep. 844; McColl v. Western Union Tel. Co., 44 N. Y. Super. 487.

4 Sanders v. Stuart, 1 C. P. Div. 326; s. C., 35 L. T. (N. S.) 370; Moak Eng. Rep. 286; Western Union Tel. Co. v. Martin, 9 Bradw. (Ill.) 587; Beaupre v. Pacific, etc. Tel. Co., 25 Minn. 155; Mackay v. Western Union Tel. Co., 16 Nev. 222; Daniel v. Western Union Tel. Co., 61 Tex. 452; 8. C., 48 Am. Rep. 305; Candee v. Western Union Tel. Co., 34 Wis. 471; s. c., 17 Am. Rep. 452; Cannon v. Western Union Tel. Co., 100 N. C. 300; s. c., 6 Am. St. Rep. 590; Abeles v. Western Union Tel. Co., 37 Mo. App. 554; Baldwin v. Western Union Tel. Co., 45 N. Y. 744 (reversing s. C., 54 Barb. 505; 6 Abb. Pr., N. S. 405; 1 Lans. 125); Belun v. Western Union Tel. Co., 7 Reporter, 710; 8 Cent. Law J. 445; 11 Chicago Legal News, 276; Landsberger v. Magnetic Tel. Co., 32 Barb. (N. Y.) 530; Kinghorne v. Montreal Tel. Co., 18 Up. Can. (Q B.) 60; Shields v. Washington Tel. Co., 9 West. L. J. 5 (nisi prius case); United States Tel. Co. v. Gildersleve, 29 Md. 232; s. C., 96 Am. Dec. 519; Horne v. Midland R. Co., L. R. 7 C. P. 583 (commented on in Wood's Mayne on Damages, § 34); Western Union Tel. Co. v. Kirkpatrich, 76 Tex. 217; S. C., 13 S. W. Rep. 70; McColl v. Western Union Tel. Co., 7 Abb. N. Cas. (N. Y.) 151; Behm v. Western Union Tel. Co., 8 Biss. (U. S.) 131. See note collecting American cases, 21 Am. & Eng. Corp. Cas. 131.

duty of the sender of the message to disclose to the company its meaning, where more than ordinary importance attaches to it, and that if he fails in this duty his situation is like that of a shipper who delivers goods to a carrier, concealing from the carrier their nature, amount and value. The rule necessarily assumes that the agents of the telegraph company, authorized to receive messages for transmission, are its agents for the purpose of receiving communications respecting the importance of any message tendered to them for transmission; and all the decisions tacitly assume this. Another feature of the rule is that it is quite immaterial whether the dispatch is couched in ciphers, or whether it is otherwise so obscure as not to be understood by the agent of the company who receives it for transmission. In either case the company will not be liable unless notice of the special circumstances making it important is communicated. And while the opinion was incidently expressed, in the case last cited, that oral information of the true meaning and significance of a telegram, showing that it does in fact relate to an important business operation, when such does not appear to be its character on its face, will not be sufficient to bind the company,-it is apprehended that there is no rule of law, founded on any known analogy, and certainly there is none established by judicial authority, which requires such information to be communicated in writing. It is sufficient, where the message does not disclose its own importance, that the circumstances rendering it important were explained to the agent at the time it was delivered for transmission. And where the person delivering the message to the operator, told him that it was of great importance, and that the party sending it ought to get a reply the next day, it was held that there was no ground for limiting him to the amount paid for sending the message.8

5 Candee v. Western Union Tel. Co., 34 Wis. 471; s. c., 17 Am. Rep. 452; Abeles v. Western Union Tel. Co., 37 Mo. App. 554, 560.

6 United States Tel. Co. v. Gildersleve, 29 Md. 232; S. C., 96 Am. Dec. 517, 527; Baldwin v. United States Tel. Co., 45 N. Y. 744 (reversing s. C., 54 Barb. (N. Y.) 505; 6 Abb. Pr., (N. S.) (N. Y.) 405; 1 Lans. 125).

7 Mackay v. Western Union Tel. Co., 16 Nev. 222, 228. Compare Hart v. Direct, etc. Cable Co., 86 N. Y. 633.

8 Sprague v. Western Union Tel. Co., 6 Daly (N. Y.), 200.

« AnteriorContinuar »