Young v. Western Union Telegraph Co., 65 N.Y. 163 (N.Y. 1875)

Gray, C.

The defendant’s blanks contained printed terms upon which it proposed to transmit messages over its line, subjoined to which was the following : “ Send the following message subject to the above terms, which are agreed to.” Following that was the plaintiff’s written message. The statement of the terms by the defendant upon which messages would be transmitted over its line, and the acceptance of those terms by the plaintiff, constituted a contract as to the terms upon which the message, out of which this controversy has arisen, was sent (Breese v. The U. S. Tel. Co., 48 N. Y., 132, 139, 141; Belger v. Dinsmore, 51 id., 166, 173; Wolf v. The W. Union. Tel. Co., 62 Penn. St., 82, 87) ; and so it was held on the trial. One of the terms of this contract thus consummated was, that the defendant would not be liable for any damages in any case where the claim for damages should not he presented in writing within sixty days after sending the message. The message was sent on the 2d day of December, 1867, and the only evidence of a notice by the plaintiff to the defendant, of any kind, within sixty days after sending the message, was, that an incorrect statement of the damages claimed by the plaintiffs was made in their behalf between the

fifteenth and twentieth of January, next after the message was sent, and carried by the plaintiff’s agent to the first floor of the defendant’s office, in the city of blew York, and there shown to an operator or receiving-clerk, who, upon looking at it, handed it back to the agent, saying that he had nothing to do with it, and referred him (in the language of the witness), to the officials up stairs, where the agent went and inquired for both the defendant’s president and treasurer, and upon being informed that each of them was absent, returned to his office, tore up the statement he had exhibited to the operator or the receiving clerk; and on the sixth of the following month (February) after more than sixty days had elapsed after the day on which the message was sent, addressed a note to the defendant’s president, containing a statement of the damages claimed by the plaintiff, which was carried and left at the office of the defendant; and this was held, by the judge before whom the trial was had, to be, if the jury believed the evidence, a compliance with .the agreement requiring the plaintiffs’ claim, for damages to be presented, in writing, within sixty days after sending the message, as a condition of the defendant’s liability. In so ruling, an error was committed, for which the judgment which followed the ruling thus made was properly reversed. If presenting a claim in writing to an agent of the company authorized to exercise any of its corporate powers in relation to the subject-matter of the claim, and permitting it to be perused, and then receiving it back from him and destroying it would be a compliance with the agreement, even that was not done in this case. The person to whom it was presented was not shown to be a representative of the company in any capacity which conferred upon him any power or duty relating to the subject-matter of the claim, but was rather a servant of the company, holding the same legal relation to it that an ordinary operative holds in a business or manufacturing establishment to his employer, and to whom a tender of the performance of a contract would not bind his principal; and this was the only presentation of the plaintiff’s claim, in any way, until the time

within which it was to be presented in writing had expired. The agreement itself was, as has been held in Wolf and others against this defendant, in a case in all respects like the one we are considering, consistent with public policy, and valid (62 Penn. St., 82, 88), and is, in principle, sustained by the authority of the highest judicial tribunal in this State or nation. (Ripley v. Ætna Ins. Co., 30 N. Y., 136, 163; Roach v. N. Y. cmd Erie Ins. Co., id., 546; The Southern Express Co. v. Coldmell, decided at the last October Term of U. S. Sup. Ot., and not yet reported.)

The order appealed from should be affirmed.

All concur.

Order affirmed, and judgment absolute ordered against plaintiffs.