64 Ill. App. 331 | Ill. App. Ct. | 1896
delivered the opinion of the Court.
The one question of general interest on this record being decided in favor of the appellee, makes the consideration of any other unnecessary.
We assume that the appellant, acting upon a message containing a mistake made by the appellee, has sustained damage, and that for such damage he had a right of action against the appellee. The mistake was in substituting “ fifty ” for “ five ” in the message, which was as follows:
“ Form ¡No. 168.
The Western Union Telegraph Company.
(Incorporated).
21,000 offices in America. Cable service to all the world.
This company transmits and delivers messages only on conditions limiting its liability, which have been assented to by the sender of the following message.
Errors can be guarded against only by repeating a message back to the sending station for comparison, and the company will not hold itself liable for error or delays in transmission or delivery of unrepeated messages, beyond the amount of tolls paid thereon, nor in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.
This is an unrepeated message, and is delivered by request of the sender, under the conditions named above.
Thos. T. Eckert, President and General Manager.
Number Sent by Rec’d by Check
N 40_H_V K._8 paid
Received at 10:13, Jan. 16, 1893
Dated Montgomery, Ala., 16.
To Wm. E. Webbe & Co., Chicago.
Buy fifty May wheat, limit loss two cents.
I. H. & J. C. Haas.
Received by W. E. W.”
For sixteen years the appellant had been trading on the Chicago Board of Trade, doing a great deal of business with and for persons out of Chicago, and the greater part of the necessary correspondence was by telegraph, under his personal attention. He knew that on the printed blanks were conditions but had never read them, nor heard them talked about. We must assume that, in fact, he was ignorant of the terms of the conditions, but being aware that there were conditions, his neglect to inform himself of the contents of the instruments which he had used for sixteen years, does not free him, in law, from a knowledge of such contents. Constructive notice, in cases to which it is applicable, is as effectual as actual notice. Oppenheimer v. U. S. Express Co., 69 Ill. 62; Field v. C. & R. I. R. R., 71 Ill. 458; Merchants D. & T. Co., 88 Ill. 136.
The appellant did not present to the appellee any claim “ in writing within sixty days,” as was required by the conditions.
This was fatal to his cause. We adopt the decision in Manier v. Western Union, 29 S. W. Rep. 7832, 94 Tenn. 442, upon this point.
If the law applicable to the case be doubtful, it is better that a case furnishing an opportunity to settle so many questions, should go at once to the final tribunal.
The judgment, holding the appellee barred by neglect to give notice, is affirmed.