a message for default in its receipt, transmis. sion or delivery.

In England, the law undoubtedly is, that the company is under no obligations in respect to the transmission of messages other than such as arise out of its contract with the sender; the act of Parliament, which declares that "the use of telegraphs shall be open for the sending and receiving of messages by all persons alike, without favor or preference," creating no duty towards third persons who are strangers to such contract. Accordingly, where R, at the plaintiff's invitation, sent by defendant's telegraph a message: "We can give you 23s. for cargo now at G," which was forwarded to plaintiff : "We can give you 27s." etc., who, in acceptance of the supposed order, sent cargo to H and thereby sustained loss, held, plaintiff could not recover against the company for its negligence.1 So, where the company, through the negligence of a servant, delivered to plaintiffs a telegram which was not intended for them, upon which, reasonably supposing it came from their agents and was intended for them, they acted and thereby incurred a loss.2 It was also determined in this case that there could be no recovery upon an implied representation by the company, that the message came from the party by whom it purported to be sent. 3

No court in this country has evinced any inclination to adopt the doctrine of the cases just referred to, but on the contrary, the liability of telegraph companies to respond to the receiver for negligent mistakes in the transmission of a despatch, has been repeatedly affirmed, where his relation to the sender was not that of principal and agent, and he was not privy to the contract with the company.

Bowen v. L. E. Telegraph Company1 was an action by the receiver of a dispatch for damages sustained by reason of a mistake in its transmission, whereby "one hundred " was substituted for "one handsome." Plain

1 Playford v. Un. King. Tel. Co., L. R. 4 Q. B. 706 (1869); s. C., 10 Best & Sur. 759; 38 L. J. Q. B. 249, Allen's Tel. Cas. 437.

2 Dickson v. Renters' Tel. Co., 2 C. P. Div. 62 (1876); s. C. (on appeal), 3 C. P. Div. 1 (1877).

3 See Elwood v. Western Union Tel. Co., 45 N. Y. 549; May v. Western Union Tel. Co., 112 Mass. 90. 41 Am. L. Reg. 685 [Ohio Com. Pl. 1853].

tiff had dispatch repeated without discovering the error. He recovered.

The following message was left at defendant's office for transmission to the plaintiff : "Send me for Wednesday evening two hand bouquets-very handsome-one five and one ten dollars." In the message as delivered to the plaintiff, "two hand" read "two hundred." He acted upon it and sustained loss, brought an action on the case against the company for negligence, which was successful, although the same arguments were urged which prevailed in Playford's case; he was held unaffected by the sender's stipulation requiring message to be repeated.6

DeRutte v. The N. Y., Alb. and Buf. Tel. Co. was an action for the incorrect transmission of a telegram to the plaintiff. The sender was his agent and the message related to an order which he had obtained for plaintiff to purchase and ship a cargo of wheat. In this case the court maintains that the contract of the company was with the plaintiff, adding, "But if we were to leave out of view altogether the question with whom the contract was made the defendant would still be liable to plaintiff for putting him to loss and damage through their negligence in transmitting an erroneous message.

In Ellis v. Am. Telegraph Companys the action was in tort for damages resulting from an error in transmitting a message to plaintiff. There was no privity of contract between him and the company, but that was assumed to be no objection to the action.

In Rose v. The U. S. T. Co.9 the court, though holding against the plaintiff on the ground that he was not injured, concede "that irrespective of a liability arising purely on contract a telegraph company may be responsible to a third person for the injurious consequences of an error in transmitting a message to such third person." Harris v. W. U. T. Co. 10, De LaGrange v. Southwest Tel. Co.11, Aiken v. Telegraph Co.12, and

5 The N. Y. & Wash Print Tel. Co. v. Dryburg, 35 Penn. St. 298 [1860].

6 Harris v. W. U. T. Co. 9 Phil. 88 [1872]; De La Grange v. Southwest Tel. Co. 25 La An, 383 [1873]. See Ellis v. Am. Tel. Co. 13 Allen, 226; Aiken v. Tel. Co. 5 So. Car. 358.

71 Daly, 547 [1865].

8 13 Allen, 226 [1866].

93 Abbt. Pr. (N. S.) 408 [1867].

10 9 Phil. 88 [1872].

11 25 La. An. 383 [1873].

12 5 So. Car. 358 [1873].

May v. W. U. Tel. Co.13, all decide directly the company's responsibility in tort to receivers of messages for negligence.

We think the American courts have by far the best of the argument-that there arises out of the public or quasi public employment in which telegraph companies are engaged and the multitude and importance of affairs daily transacted upon the faith of intelligence they convey, a special obligation to observe due care towards all persons with whom they deal, whether having any contract relative to them or not. Although it may be that they owe no duty to the sender of a message to transmit it at all, yet if they do transmit it they thereby assume towards him the obligation to do so without negligence. The delivery of a message by the company amounts to a representation to the receiver that it has been employed to transmit it or the intelligence it contains, which if untrue through the negligence of its servants constitutes a misfeasance. 14

Where the default of the company consists not in erroneous transmssiion, but merely in negligent delay or non-delivery of a message, the sendee's right of action is not clear, less he is privy to a contract with the company for its transmission.

un

The Western Union Tel. Co. v. Fenton,15 is the earliest case we have found upon the subject. That was an action by the sendee for delay in the delivery of a telegram whereby he lost an employment. He recovered, although the sender was not his agent, and the relation of contractors did not exist between him and the company. The court expressly base the decision upon the Indiana statute, but intimate, perhaps, that the result would be the same at common law. So Relle v. Western Union Tel. Co,16 was an action by the sendee for failure to deliver a despatch announcing the death of his mother whereby he was prevented attending her funeral. Exceptions to the petition upon the ground that it showed no cause of action were overruled, but the sole question discussed was whether in such an action, damages for injury to feel

18 112 Mass. 90; Elwood v. W. U. T. Co. 45 N. Y.519. 14 Bigelow on Fraud, Ch. 1 sec. 3; May v. Western Union Tel. Co. 112 Mass. 90; True v. Inter. Tel. Co. 60 Me. 9, 16.

1552 Ind. 1 (1875).

16 55 Texas, 308 (1881).

The fact that the Indiana decision was controlled by the statute, and that the point was apparently not considered by the court in the Texas case (since overruled), would seem to leave it still an open question, whether the sendee, independently of special statutory provision or contractural relation to the company, can recover for failure to transmit or deliver a message. It is obvious that here there are wanting several of the considerations which have been relied upon to sustain his action for erroneous transmission. The company has not put itself into direct relation to him, 18 no duty to him arises by reason of his acceptance of the services of the company, and it is guilty of no misrepresentation upon which he has acted. We agree with a noted legal author, 19 that in such case the company cannot be made liable, "except by the adoption of a rule that would render a common carrier liable to all parties who may suffer from the non-arrival of a passenger." Usually the same reasons will apply to the sendee's action for refusal to receive a message duly offered for transmission or for deJ. H. lay in transmission or delivery. St. Louis.

17 Gulf &c. R. R. Co. v. Levy, 28 Alb. L. J. 192 (1883); Logan v. Western Union Tel. Co. 84 Ill. 468. 18 Wharton on Neg. secs. 75-7, 758; 8 Am. L. Rev. 457.

19 Wharton on Neg.

ACCORD AND SATISFACTION - CONTRACT-MARRIAGE BROKAGE.

JOHNSON v. HUNT.

Kentucky Court of Appeals, September 20, 1883. 1. To afford a good defense, an accord and satisfaction must be executed, i.e., both tendered and accepted; promise to accept is not sufficient. Therefore, a plea which sets up a bare promise to accept, is bad.

2. An agreement to surrender and discharge certain notes in consideration for the maker's services and influence in obtaining a wife for the holder, is a marriage brokage contract and, therefore, void.

3. An agreement to discharge certain notes in consideration that the maker would write and deliver for the holder, letters to a lady, with a view to a matrimonial alliance, is void, for want of a legal consideration.

PRYOR, J., delivered the opinion of the court: The appellee, George W. Hunt, on the 1st of January, in the year 1877, borrowed of his grandfather, Thomas Johnson, the sum of $5.000, for which he executed his note, payable in three years, with eight per cent. interest, from the time of its execution. The grandfather died, and his personal representatives instituted an action at law upon the note, to which the appellee pleaded in substance, that decedent being a widower, and desirous of again marrying, had offered a relative the sum of $10,000 to aid him in procuring him a wife; and his relatives (except the appellee) opposing a second marriage, the grandfather, in consideration that the appellee would assist him in procuring a wife, agreed that he would, as compensation therefor, release and give up to the appellee the note in controversy.

The name of the young lady having been suggested, the appellee alleges that he wrote letters to her for his grandfather, and did all in his power to accomplish the purpose in view; that he had not only complied with his contract, but used his influence with others, to marry his aged relative; he therefore asks that the note be delivered up, etc. To this answer, a demurrer was filed and sustained, and thereupon the appellee filed an amended answer, in which he alleges that his grandfather was seventy-seven years of age, feeble and unable to ride on horseback, and that in consideration that he, the appellee, would write letters to the young lady for him, and see that they were delivered, etc., he would give him the note for $5,000; that he fully complied with the agreement, by writing the letters and delivering them to the young lady, and therefore the note was fully discharged.

The demurrer to the answer, as amended, was overruled, and the case went to the jury upon an issue made by the administrator as to the existence of any such agreement, and a verdict returned for the defendant. The answer is but a plea of accord and satisfaction, and to make such a plea good, it should be alleged that the services performed were accepted in satisfaction of the debt or claim against the defendant, and to allege that the party accepted them in satisfaction is bad pleading. When the accord is to do a thing, in satisfaction at a future day, and the act is done and accepted on that day, it is in law a satisfaction, and no action can be maintained on the original demand. The plea must allege that the matter was accepted in satisfaction. Hearn v. Kiehl, 38 Pa. St. 147; Chitty on Contracts, sec. 1123. If the intestate agreed to accept the services of appellee in discharge of the note, and failed to comply with his part of the contract, otherwise un objectionable, the remedy is by an action for the breach of the contract.

The most fatal objection to the defense is, that the contract as alleged is void, and the proof in no manner aids the pleading or verdict rendered. It is alleged that the grandfather was advanced in years, too feeble to ride, and unable to write,

and that the appellee (his grandson) undertook to write his letters to the young lady and deliver them, and the young lady says those letters had reference to a matrimonial alliance with the old gentleman.

The principal witness for the appellee states, that in a conversation with the old man, the latter said, he had agreed to give the grandson the note, if he could assist him in marrying; that Hunt was to do his writing, etc., and was complying with his agreement.

The same statement is made by other witnesses, who speak of conversations with this old man in which he spoke of his matrimonial prospects, and of the appellee as the instrument through which success was to be accomplished.

He said to a lady witness, that George was com plying with his contract like a Turk.

The defense made, as well as the testimony in support of it, shows clearly (if any contract was made) a marriage brokerage agreement the young man undertaking to bring about the marriage in consideration of the surrender of the note for five thousand dollars.

The interference by one, upon an agreement to receive a monied or valuable consideration to induce or bring about a marriage between others has always been held void. Such contracts, if carried out,result in unhappy marital relatious, and have been discountenanced by the law.

The elementary authorities, as well as the reported cases, all sustain this view of such a contract.

We have seldom seen a more flimsy defense than has been made in this case. The declarations of an old, feeble, and diseased man, with reference to a contemplated marriage, are made the sole foundation for defeating the recovery.

The appellee promised to pay the note, time and again, after the death of his grandfather, and there can be no doubt, from the proof in the record, that the statements made by the intestate were mere expressions of an intention to give without any consideration whatever. He died in possession of the note, and it passed into the hands of the administrator.

The court below should have sustained the demurrer to the answer as amended, and failing to do that should have instructed the jury to find for the plaintiffs'.

Smith on Contracts, 221; Cole v. Gibson, 1 Vesey, 503; Fonblanques Equity, 212.

The judgment below is reversed and the cause remanded, with directions to award a new trial, and to sustain the demurrer to the defense made, and for further proceedings consistent with this opinion.

NEGOTIABLE PAPER-OPTION CONTRACTS -INNOCENT HOLDER.

CUNNINGHAM v. NATIONAL BANK OF AUGUSTA.

Supreme Court of Georgia, November, 1883.

A note given to a broker in payment for losses incurred in purchasing "cotton futures" for the maker, is absolutely void, and, therefore, cannot be enforced by a purchaser in good faith, before its maturty.

BLANDFORD, J., delivered the opinion of the

Court:

The bank sued Cunningham on a promissory note, to which action defendant pleaded, in substance, that the note was given to Warren Wallace & Co., the payees, to make good and pay any loss that might accrue in a certain wagering, gambling, immoral and illegal contract for the purchase of certain cotton, with the intention and understanding by both parties that the cotton was not to be delivered to, or received by defendant; that there was to be a settlement at a future day, when the defendant was to receive or pay the differance between the contract price and the market price on the day the settlement was to be made, etc. This plea was demurred to by the plaintiff, and the court sustained the demurrer, upon the ground that the plea did not aver that plaintiff was not a bona fide holder of the note sued on, before due and without notice, the note being payable to Warren Wallace & Co., and due twelve months after date-and dismissed defendant's plea. To this ruling the latter excepted.

It is manifest that the consideration of the note sued on is for, and on account of dealings commonly called futures. Is such a transaction in the nature of gaming? If so, then, the note was void at the time it was given; and no subsequent transfer could revive or give vitality or any legal validity to a contract thus tainted and poisoned at its birth. It came into the world still-born, though odorous with crime, and no subseqent transaction in relation thereto could cleanse it or give it any vitality, into whosoever hands it might come. A note limited, as this is said to be, will be considered as giving notice itself of its illegal and criminal birth and origin to whomsoever it may come. The plea expressly alleges the transaction to be a wagering and gaming contract." But what is the transaction termed futures? It is this: one person says, "I will sell you cotton, at a certain time in the future, for a certain price; you agree to pay that price, knowing that the person with whom you have to deal has no cotton to deliver at the time; but with the understanding that when the time for delivery arrives, you are to pay me the difference between the market value of the cotton and the price you agreed to pay, if cotton declines; and if cotton advances, I am to pay you the difference between what you promised to give and the advanced market price." If this is not a

speculation on chances, a wagering and betting between the parties, then, we are unable to understand the transaction. A betting on a game of faro, brag or poker cannot be more hazardous, dangerous or uncertain. Indeed, it may be said that these animals are tame, gentle and submissive compared to this monster. The law has caged them and delivered them to their dens. They have been outlawed, while this ferocious beast has been allowed to stalk about in open midday, with gilded signs and flaming advertisements, to lure the unhappy victim to its embrace of death and destruction. What are some of the consequences of these speculations on "futures?" The "faithful chroniclers of the day" have informed us that, as growing directly out of these nefarious practices, there have been bankruptcies, defalcations of public offices, embezzlements, forgeries, larcenies and deaths. Certainly, no one will contend for one moment, that a transaction fraught with such evil consequences is not immoral, illegal and contrary to public policy.

In the case of Rudolph v. Winters, 7 Neb., 126, the Supreme Court of that State held, "that a contract to operate in grain options to be adjusted according to the difference in the market value thereof is a contract for a gambling transaction which the law will not tolerate. It is contra bonos mores and against public policy." We recognize this ruling to be sound and adopt the same. This was also ruled by the Supreme Courts of Illinois, 79 Ill., 328; 83 Id., 33; 52 Wis., 593; 55 Id., 354; 58 Iowa, 713; Hawley v. Bibb, S. C. Ala., Dec., 1881; L. Reporter, 172; 65 Me., 574; 11 Hun., 473; 71 N. Y., 426; 56 Id., 230; 6 Mo. App., 296; 39 Mich., 337; 40 Id., 432; 101 Mass., 145; 7 Biss., 338, 540; 8 Brad., 467; 5 Moore, 571; 68 Ga., 124, 296.

In 55 Pa. St. 296-9, Thompson, J., in delivering the opinion, said: "Any thing which induces men to risk their money or property, without any other hope of return than to get for nothing any given amount from another, is gambling and demoralizing to the community, no matter by what name it may be called. It is the same, whether the promise be to pay on the color of a card, or the fleetness of a horse, and the same numerals indicate how much is lost or won in either case, and the losing party has received just as much for the money parted with in the one case as the other, viz., nothing at all. The lucky winner is, of course, the gainer, and will continue so until fickle fortune, in due time, makes him feel the woes he has inflicted on others. All gambling is immoral; the losses incident to the practice disclosed, have contributed more to the failures and embezzlements by public officers, clerks, agents and others acting in fiduciary relations, public and private, than any other known or perhaps all other causes. In the train of its evils there is a vast amount of misery and suffering by persons entirely guiltless of any participation in the cause of it." To our mind this is a true statement of the transaction set forth in the plea

of the plaintiff in error. Nothing that we could say would add to the picture so ably drawn by this learned Judge. See also, 68 Pa. St. 173;

87 Id., 63; 89 Id., 89.

It is insisted by the able and distinguished coun sel for the defendant in error that as the bank was a bona fide purchaser before maturity, without notice of the consideration of the note sued on, it is protected from and not affected by the defense set up by the plaintiff in error. To this position, our code, 2753, is a sufficient reply. It is provided as follows: "Gaming contracts are void, and all evidences of debt, or encumbrances or liens on property, executed upon a gaming consideration are void in the hands of any person." 68 Ga., 124, 296; code, 2785; 1 Dan. Neg. Inst., 807.

Whilst it is true that this court has decided that an agent may recover from his principal moneys expended in the purchase of cotton futures for the latter, at his instance and request, it will be observed that the present code does not involve the principle so decided. See 45 Ga., 501: 59 Id., 26; 64 Id., 184. We are not prepared to say that we will be bound in the future by the decisions last referred to, when the same are reviewed as the law directs, or what our judgment may be upon such consideration.

The judgment of the court below, sustaining the demurrer to the pleas of plaintiff in error, is reversed.

COMMON CARRIER DUTY TO CARRY GOODS OFFERED BY OTHER COMMON CARRIERS.

WELLS, ETC. v. OREGON, ETC. CO.; SAME v. OREGON, ETC. R. Co.

United States Circuit Court, District of Oregon. A common carrier is bound to furnish other common carriers the facilities necessary for the proper conduct of their business.

FIELD, J., delivered the opinion of the court: The bill of complaint alleges that the plaintiff is a corporation organized under the laws of Colorado, and is engaged, and has been for many years, on the Pacific Coast and in other parts of the country, in what is known as the express business. The defendants are corporations formed under the laws of Oregon, and own steam vessels which ply on the waters of British Columbia, Oregon and California, and on the ocean along the Pacific coast, and are employed in the transportation of freight and passengers. They also own different lines of railway in Oregon and adjoining Territories, which are also employed in the transportation of freight and passengers. The business of the plaintiff is that of a carrier of parcels by the most rapid means of conveyance in use on its routes, under the direct supervision of agents accompanying them from the domicile or

office of the owner, or shipper, and delivering them at the office or domicile of the party to whom they belong or are consigned. The special advantage of the carrying business thus conducted, consists in this personal supervision over the articles by the agents of the express company during their transportation, from their receipt to their delivery at their destination, thus giving greater security against loss and accident. Railroad companies and other common carriers usually confine their supervision to securing safe carriage from one to another of their stations, depots or wharves. Their responsibility is limited, in the absence of special contract, to safe carriage over their own routes between such places, and, when transporting with connecting lines, to safe delivery to the next connecting carrier. The express company, in exercising personal supervision over articles intrusted to it from their receipt until their delivery to their destination, performs a most important and valuable service to the public. Its business, though comparatively of recent origin, has been conducted in the States and Territories of the country with such general care and fidelity by companies organized like the plaintiff, that they have become a favorite means of transporting small articles, and particularly those containing great value, or requiring special care in handling. The express business has thus become a recognized branch of the carrying trade, and the question is: Shall the railway companies and steamship companies engaged in that trade, be required to furnish facilities to the express companies in the transaction of this business? The business would entirely fail and come to an end if certain facilities for its transaction were not afforded them, such as allowing to them special cars, or apartments, or definite spaces in them for the transportation of such articles, with a messenger in charge thereof, having sufficient room for the assortment of the articles by him while in transit, so as to facilitate their delivery at the different stations to which they may be destined. It may be difficult to define with accuracy what should be deemed proper facilities in each case. That will depend very much upon the extent of the business and character of the articles carried by the express companies. In the present cases, it is not necessary to designate what those facilities should be. The object of the two suits is to restrain the defendants from denying to the plaintiff the facilities which have heretofore been furnished to it.

The question presented for determination is: Can one common carrier be required to furnish accommodations for the business of another common carrier, and, if so, to what extent? The question is one of much difficulty, and its correct solution will be far-reaching in its consequences. It has been before different circuit courts of the United States in some cases, but has never been brought before the Supreme Court. In the case of the Southern Express Co. v. St. Louis, etc. R. Co., in the Eighth Circuit, it was considered by