One who sends an order by telegraph makes the company his agent for the delivery of the same, and is bound by the message as delivered. The receiver may put in evidence the message as received.50 This is upon the principle that any mistake of the company in the act of transmission or delivery is the mistake of the principal in the same manner as if a mistake should be made by any agent in the delivery of any verbal message. Qui facit per alium, facit per se. But in England a different rule prevails, the message delivered to the company being deemed the primary evidence; 51 and a few cases in this country seem to hold this view.52 While this is true if the answer is a mere acceptance or answer to an offer, yet if the message sent in reply contains new conditions or offers, the company would probably be deemed the agent of the one replying, and in that case the message as received would be the original on the principle first stated.53 Of course there must be to the particular end of the line where inquiry is first to be made for the original, it depends upon which party is responsible for the transmission across the line, or in other words, whose agent the telegraph is. The first communication in a transaction, if it is all negotiated across the wires, will only be effective in the form in which it reaches its destination. In such case inquiry should first be made for the very dispatch delivered. In default of that, its contents may be shown by the next best proof. If the course of business is, as in the cities, to preserve copies of all messages received in books kept for that purpose, a copy might readily be obtained which would ordinarily be regarded as better proof than the mere recollection of a witness. And according to the early English and the American practice, the party is bound to produce a copy of the original (that being lost) when in his power, and known a suffi cient time before the trial to enable him to do so: 1 Greenleaf, Ev., § 84, and note. And perhaps if no copy of such message is preserved, but the original message ordered to be sent is preserved, that should be produced, although this were not strictly the original in the case, the letter delivered, which was the original, being lost. But where the party to whom the communication is made is to take the risk of transmission, the message delivered to the operator is the original, and that is to be produced, or the nearest approach to it by way of copy or otherwise." 50 Saveland v. Green, 40 Wis. 431; Western Union Tel. Co. v. Shotter, 71 Ga. 760. 51 Henkel v. Pape, L. R. 6 Ex. 7. 52 Matteson v. Noyes, 25 Ill. 591; Williams v. Brickell, 37 Miss. 682, 75 Am. Dec. 88. 53 Redf. Car., § 546; Durkee v. Vermont Cent. Ry. Co., 29 Vt. 127. 56 competent proof that the alleged sender did actually send or authorize the sending of the message in question.54 We have already dealt with the presumptive authenticity of telegrams; 55 and the rule for replies to telegrams may be taken as properly resting on the foundation laid in the leading case. The telegraph company is the agent of the person initiating correspondence for the purpose of receiving a reply by telegraph, where a telegraphic reply is expected by the person making use of the telegraph to conduct the correspondence.57 Although, as we have said, such proof may consist of circumstantial evidence, yet the fact of the delivery of a telegraphic dispatch to a person at a given time and place is not proved by producing an alleged reply signed by him, received at the sending office later on the same day and addressed to the sender of the former dispatch.58 In controversies between the sender and the telegraph company, for example, in an action for failure to properly transmit the message, the primary evidence of the dispatch is the message left with the company for transmission.59 In proving a contract by telegram the best evidence is the telegram containing the offer as re 54 Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355; Oregon Steamship Co. v. Otis, 100 N. Y. 446, 53 Am. Rep. 221, 3 N. E. 485, the primary evidence of this fact is the telegram delivered to the company. 55 § 53, ante. 56 Durkee v. Vermont Cent. Ry. Co., supra. 57 Bond v. Hurd, 31 Mont. 314, 3 Ann. Cas. 566, 78 Pac. 579; Cobb v. Glenn etc. Co., 57 W. Va. 49, 110 Am. St. Rep. 734, 49 S. E. 1005. But it has been held that a telegraph company is the common agent of the parties at either end of the wire: New York etc. Tel. Co. v. Dryburg, 35 Pa. 298, 78 Am. Dec. 338. 58 Howley v. Whipple, 48 N. H. 487. See note to § 53, ante. 59 Western Union Tel. Co. v. Hopkins, 49 Ind. 223; Redf. Car., § 546. In Conyers v. Postal Cable Co., 92 Ga. 619, 44 Am. St. Rep. 100, 19 S. E. 253, it was held admissible in such an action to offer the message as delivered to the sender without first calling for or showing inability to obtain the original message. The same was held in Western Union Tel. Co. v. Blance, 94 Ga. 431, 19 S. E. 255, and also in Western Union Tel. Co. v. Smith (Tex. Civ. App.), 26 S. W. 216, on proof that the original is out of the jurisdiction, or that it is lost: Western Union Tel. Co. v. Williford (Tex. Civ. App.), 27 S. W. 700. ceived at the point of destination and the dispatch containing the acceptance as delivered for transmission. This is in analogy to the making of contracts by letter where the contract is consummated when the acceptance is delivered for transmission.60 When a contract is made by telegraph, which must be in writing by the statute of frauds, if the parties authorize their agents, either in writing or by parol, to make a proposition on one side and the other party accepts it through the telegraph, that constitutes a contract in writing under the statute of frauds, because each party authorizes his agents, the company or the company's operator, to write for him; "and it makes no difference whether that operator writes the offer or the acceptance in the presence of his principal, and by his express direction, with a steel pen an inch long attached to an ordinary penholder, or whether his pen be a copper wire a thousand miles long. In either case the thought is communicated to the paper by the use of the finger resting upon the pen; nor does it make any difference that in one case common record ink is used, while in the other case a more subtle fluid, known as electricity, performs the same office."'" With reference to such contracts a difficult point has arisen over the negligent alteration of a message in transmission, and the liability of the parties is of course affected by the status of the agency of the telegraph. In a most exhaustive opinion in a Tennessee case,62 the court, after a thorough review of the cases involving the question of agency and the question which message is the original, came to the conclusion that the mere fact of employment of a telegraph company to transmit a message does not make the company the agent of the sender so as to bind him upon a telegram negligently altered in the transmission, and that the 60 Durkee v. Vermont C. Ry. Co., 29 Vt. 127; Howley v. Whipple, 48 N. H. 487; Wilson v. Minneapolis & N. Ry. Co., 31 Minn. 481, 18 N. E. 291; Saveland v. Green, 40 Wis. 431; Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355; Beach v. Raritan & D. B. Ry. Co., 37 N. Y. 457; Cobb v. Glenn 61 Howley v. Whipple, supra. sender is bound by the contents of the telegram as received only so far as it is a faithful reproduction of what is sent. The court in the above case laid considerable stress upon the proposition that the question of altered message was not involved in some of the cases cited to the proposition that the telegraph company is ordinarily the agent of the person sending the message, and adverted to the fact that in some of the cases the question discussed was which message was the original message-the one delivered to the telegraph company for transmission or the one actually delivered. The English authorities are in accord with the Tennessee decision but are not entitled to weight here by difference in the conditions. The law in this country undoubtedly is that laid down in the great Vermont case, and that being so, the Tennessee case must not be regarded as any alteration of it except in that state. The telegraph company either is or is not the agent of the person initiating a telegraphic negotiation. The weight of authority says that it is.63 It has just received additional strength from a recent Wisconsin case. In that case one Sherrerd sent a telegram from Milwaukee to New York to his brokers to buy "one hundred corn products at market." The message was delivered "one thousand.” The court said there was no dispute that the telegraph company was Sherrerd's agent and that under the circumstances the purchase by the plaintiff's brokers of the one thousand shares of the specified stock, pursuant to the telegram delivered to plaintiff's brokers, vested the title thereof in the plaintiff, and made him the owner. No question of ratification of the purchase could arise as between the plaintiff and his brokers. The brokers acted within the authority of their agency for the plaintiff in purchasing the stock for him, and executed the authority which the telegraph 63 Dunning v. Roberts, 35 Barb. (N. Y.) 463; New York etc. Printing Tel. Co. v. Dryburg, 35 Pa. 298, 78 Am. Dec. 338; Durkee v. Vermont Cent. R. Co., 29 Vt. 127; Saveland v. Green, 40 Wis. 431; Ayer v. Western Union Tel. Co., 79 Me. 493, 1 Am. St. Rep. 353, 10 Atl. 495. 64 Sherrerd v. Western Union Tel. Co., 146 Wis. 197, 131 N. W. 341. company had undertaken to transmit for the plaintiff. The stock purchased under plaintiff's authority, pursuant to the terms of the telegram, therefore became plaintiff's property without any further action on his part, nor was he so circumstanced that he could disaffirm the transaction as between himself and the seller. The same rules must also apply to aerograms and wireless messages whenever they may form the subject of judicial investigation. The mere absence of the wire will not affect the construction of messages which will, we assume, come under the head of electric communications. § 211 (210). Communications by telephone.-The subject of telephonic communications is germane to that treated in the last section only in that such communications spring from a common source. Otherwise its treatment as evidence differs materially. In the one case we have to deal with the intricacies of the law of agency, of primary and secondary evidence; in the other a simple variation in the way of proving oral communications. A man may testify as to what another said to him. The circumstances are but slightly different if the conversation is held with a fence between them. The height of the fence only calls for the establishment of identity, and so it is with the telephone. A man may send a verbal message to another and the evidence of it is material; so a message may be transmitted by telephone and if, occasionally, the telephone operator at some intermediate station conveys the message, he is only enacting the part of the carrier of the verbal message. Having regard to the connection with the subject treated in the last section it may be best to discuss here the subject of telephonic communications, although, strictly speaking, the rule as to the best evidence has little, if any, application to such communications. The rule, says the court in a well-known Kentucky case, 65 that a party must produce the best evidence within his power 65 Sullivan v. Kuykendall, 82 Ky. 483, 56 Am. Rep. 901. |