54 Ark. 221 | Ark. | 1891
This is an appeal from a judgment for fifty dollars against the appellant in favor of appeliee, to compensate him for damages sustained by the failure of appellant’s servants to deliver a telegram sent by appellee from Newport to Clarendon, Ark. There was printed upon the face of the blank form upon which the telegram was written these words : “ 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.” The circuit court made the following declaration of law in the case: “ The condition in reference to delay in presenting claim has no application to a failure to deliver, caused by the negligence •of defendant’s agents.” The only controversy in the case is over the correctness of this declaration, and the solution of this depends upon the reasonableness and validity of the above stipulation on the blank of the telegraph company upon which the message was written by appellee’s agent and sent over appellant’s telegraph line.
Such a condition is not only not a stipulation against the negligence of the company, but it implies that a liability may be incurred for negligence ; and it requires that one who seeks to recover damages for such negligence shall present his claim in writing within sixty days -or be held to have waived it. “ Conventio vincit legemT Messengale v. West. U. Tel. Co., 17 Mo. App., 257. “ When a definite term is fixed, the question of its reasonableness is to be determined by the court.” Id. In the above case thirty days was held to be a reasonable time. And twenty days have been held sufficient.
We know of no public policy that would be violated by conceding to a competent person the right to make a reasonable contract; and it is not unlawful for such a person to-limit himself to less time than would be allowed by the statute of limitations, within which to assert his claim for damages for violation of a contract. Such a one may renounce a privilege allowed him by law, and such renunciation will bind him. It is said that “ Statutes of limitation prohibit, not the limitation of actions, but the indefinite postponement of them.” Greenhood on Public Policy, p. 505 ; N. W. Ins. Co. v. Phœnix Oil Co., 31 Pa. St., 448; Wolf v. West. Un. Tel. Co., 62 Pa. St., 87; W. U. Tel. Co. v. Ranis, 63 Tex., 27; see Gray on Telegraphs, p. 62.
The authorities are almost uniform in maintaining the reasonableness and validity of such a stipulation.
The third declaration of law made by the circuit court was erroneous for the reasons above indicated; wherefore the judgment is reversed, and the cause is remanded for a new trial.