129 F. 344 | 8th Cir. | 1904
Plaintiffs in the Circuit Court, defendants in error in this court, recovered a judgment against the telegraph company for $8,872, with interest, as damages occasioned to them by the company’s transmission and delivery of this telegram:
“Denison, Iowa, March 14, 1902. To Commercial Bank, Britt, Iowa: We will honor Barnes draft for eight thousand nine hundred seventy-two dollars. [Signed] Bank of Denison.”
■ Plaintiffs were dealers in live stock, and negotiated a sale of cattle to one Barnes, who made payment therefor by a check drawn by him on the Bank of Denison, and made payable to plaintiffs. The contention of plaintiffs was that the telegram was transmitted and delivered without the authority or knowledge of the Bank Of Denison; that “defendant company knew, or by the exercise of reasonable care and
Different rulings during the trial show that the court proceeded upon the view that it was permissible for the jury to say and find that the telegraph company was fairly charged by the language of the telegram with notice that some one other than the addressee, the Commercial Bank, was intending to act upon the information therein given, and would be affected by it, and, that if the jury placed this construction upon the telegram, the case would be taken out of the well-recognized rule, stated and applied by this court in McCornick v. Western Union Telegraph Co., 25 C. C. A. 35, 39, 79 Fed. 499, 38 L. R. A. 684, viz.: “But a telegraph company cannot be liable to a stranger to the company and to the telegram — one to whom it has never delivered the message, and to whom it owes no duty whatever — merely because he has seen the telegram and acted upon it' to his injury.” The court gave expression to this view in different portions of the charge to the jury, including the last paragraph, which was:
“In order to entitle the plaintiffs to recover in this action, it must appear that this dispatch, sent in the name of the Bank of Denison, was of such a character as upon its face it showed that it dealt with-money or property; that it was of such a character as that the telegraph company could be fairly held to infer from the telegram that some person other than the Commercial Bank might be interested in it; that in fact it was delivered by the telegraph company, and was delivered under circumstances charging the telegraph company with a want of ordinary care in receiving it; and that it did not use ordinary care to ascertain whether the Bank of Denison authorized the dispatch to be sent; and that the evidence shows that in fact the Bank of Denison did not send this telegram, or authorize it to be sent; and that, as a consequence of acting upon it, the plaintiffs parted with their property, and have been damaged in the value of the cattle.”
This is complained of, and we think it was error. The language of the telegram is clear, and is confined to a statement that the sender, a bank, will honor Barnes’ draft for a stated sum. This statement is addressed to another bank, a part of the business of which is to advance money on checks or drafts drawn upon distant banks and others. It is a matter of common knowledge that these advances are made at times directly to the drawer, and at other times to the payee or
It is urged that the Commercial Bank of Britt, to which the telegram was addressed and delivered, was in fact the agent of plaintiffs for the purpose of receiving the information conveyed in the telegram, and that therefore plaintiffs were not, in legal contemplation, strangers to the company or to the telegram, but were the real parties in interest, and, as undisclosed principals of the addressee, may maintain this action, although there was no indication in the telegram that it was intended for them, or that the addressee was only an agent. But if the rule of law invoked in this contention be applicable to an action such as this, as to which no opinion is now expressed, it does not avoid the error already shown. It is so much of a departure from the view disapproved by us, which controlled the course of the trial, and under which the jury returned the verdict which supports the existing judgment, that to now apply it to the evidence for the purpose of sustaining the verdict and judgment would be to take the place of the trial court and jury, and to transcend'the authority of an appellate tribunal.
The judgment is reversed, with a direction to grant a new trial.