As the findings of fact by a referee, when not disturbed by the General Term, are conclusive upon this court, we are relieved from any critical examination of the testimony. Some of the important points do, indeed, arise upon undisputed facts, and thus present themselves as questions of law rather than as questions of fact. (Code, § 268; 5 Seld., 463.)
Of this character is the first point presented, to wit, whether Magill Pickering were partners of the plaintiffs or were their agents. The referee, in fact and in law, adjudged them to be agents merely. Magill Co. agreed to receive from the plaintiffs their salt, to sell it in the Chicago market, to render correct accounts of sales, and to remit the *Page 569 proceeds every fifteen days. Their compensation for making the sales was to be one-half of the net profits, after deducting the cost of the salt, freight, insurance, dockage, and interest from the day of shipment to the day of sale. There was no agreement that they should bear any portion of the losses suffered. The hazard of loss rested upon the plaintiffs exclusively. This, in law, created an agency, and not a partnership. (Salter v.Ham, 31 N.Y.R., 321; Burckle v. Eckhart, 3 Coms., 132, S.C.; 1 Denio, 337.)
The dispatch in question was forwarded by the agents of the plaintiffs in their business, and has been adopted and assumed by them. The plaintiffs are the proper parties to bring this action.
The next and the main question is upon the liability of the defendants under the circumstances stated. The referee finds that, in fact and in law, the company receiving the message at Chicago was the agent of the New York company to receive messages for transmission over its wire. He finds this upon the contract, the substance of which is set forth in the preceding statement. He finds, also, that it had upon it a duty to receive and transmit correctly, and that it is liable upon that ground.
The plain and simple rule upon this branch of the case is furnished by the law upon the subject of common carriers. I do not consider a telegraph company subject to the liability of a common carrier, as I shall hereafter show, but I use the case as an illustration. A merchant in New York ships a bale of goods by the People's Line of steamboats from that city to Chicago. The duty of the people's line is not themselves to carry these goods to Chicago, but simply to carry them to the end of their route, and then deliver them according to instructions, or, if uninstructed, to some responsible line for further transportation. Their duty is then ended, as is their liability. (Gould v. Chapin, 20 N.Y.R., 259; Ladue v. Griffith, 25 id., 364; McDonald v. W.T. Co., 34 N.Y.R., 497.) The railroad company, or the canal boat proprietor to whom they are delivered, upon their receipt, at *Page 570 ance becomes liable to the shipper, and so remains until he carries the length of his route, and delivers them to some responsible party for further transportation. When this is done his liability ends, and that of the new carrier commences, upon the same terms. Each carrier, by the receipt of the goods, and the consequent promise to forward them, enters into an agreement with the owner at New York, although he does not meet him or correspond with him personally, that he will safely carry and deliver the goods, and is liable to the original owner in New York if he fails in his undertaking. (Auth. sup). The rule and the reason of it are the same in regard to the transmission of telegraphic messages.
A company of this character exists at Chicago, whose own lines extend only to Detroit or Toledo, and then connect with other lines extending to Buffalo; these, in their turn, with lines extending to New York, and connecting with the last line, and lines also extending northerly to Oswego and southerly to Binghamton. It is not the duty of the company thus situated at Chicago, on receiving a message for New York, nor does it undertake that it will, by itself or by its own lines, transmit the message to its final destination. In analogy to the common carriers' rule, and upon the good sense of the transaction and the general understanding of the community, it undertakes for care and attention in transmitting it over its own lines, and for its prompt delivery to a competent and responsible company for further transmission. When so delivered, its liability terminates, and that of the receiving company begins. On this point I hold the case to have been well decided by the referee, and if a liability existed, the defendant was the party upon whom, by law, it rested.
I have examined all the cases cited in the collection of decided cases, respecting telegraphic liabilities furnished by the appellants' counsel, and find that these views are sustained in principle by many of them, and not in hostility to any of them having authority. Stevens v. Montreal Telegraph Company (16 Upper Canada R., 530.) *Page 571
The third objection presents the question, whether a telegraph company is liable as a common carrier, or whether their liability arises only in the want of proper care and attention.
I can find no authority, and can discover no principle upon which to charge such a company with the absolute liability of a common carrier. That liability was founded upon the necessities of the case, real or fancied, and has never been applied to any person or to any occupation, except those of carriers of goods and innkeepers. The carrier had the exclusive possession and control of the goods, often in secret, away from the supervision of any other person, with opportunity for embezzlement and collusion with evil minded persons, and without means of discovery by the owner. Especially was this so in the ruder stages of civilization, and before the present modes of communication, rapid and easy, were in existence. It was upon this view, early adopted as a rule of safety to the community, that the carrier should always be prima facie liable, in case of non-delivery of the goods, and that he should not be excused for any causes, except those occurring by the act of God or of the public enemies, and these were to be shown by himself.
Whether his liability is based upon the contract he makes, or upon his public duty, the telegrapher does not come within any of these principles. He has no property intrusted to his care. He has nothing which he can steal, or which can be taken from him. There is no subject of concealment or conspiracy. He has in his possession nothing which in its nature and of itself, is valuable. It is an idea, a thought, a sentiment, impalpable, invisible, not the subject of theft or sale, and as property, quite destitute of value. He cannot, himself, see or hear, or feel the subject of his charge. He submits an idea to a mysterious agency, which carries it to its destination, and delivers it to one there at hand to receive it. He is bound to conduct the business appertaining to this pursuit, with skill, with care and with attention. He holds himself out as possessing the ability to transmit these communications *Page 572 and he undertakes that he can and will transmit and deliver them with the expected dispatch. There may be circumstances in the nature of the instrumentality employed, and the effects to be produced, which, in a particular case, will prevent the proper accomplishment of the undertaking. A thunder storm, which prevents or renders dangerous the operation of electrical currents or machines; a tempest, which prostrates poles and breaks the wires; or unusual pressure of prior business; the sudden sickness of an operator, or many other causes, might prove a sufficient excuse for the want of a prompt delivery of a message. A message is taken to an office in Buffalo to be sent to the city of New York, a distance of about 500 miles, and is accepted. This acceptance implies that the message is to be sent immediately, or certainly within a few hours. The sender can communicate by letter or go in person, within the space of twelve or fourteen hours, and the object of a telegraphic message is to gain the advantage over the time that would thus elapse. This is understood by all parties, and the sender has the right to rely upon it.
In the present case the referee has found actual negligence or want of care in the defendants' agent at Syracuse. The message, as received at Syracuse from the west, contained an order for 5,000 sacks of salt, a sack containing about fourteen pounds of fine salt. As sent by the defendants' agent, it contained an order for the same number of casks of salt — a cask containing 320 pounds of coarse salt. No excuse is given for this error, and no explanation, unless it be only that the characters by which these words are designated, nearly resemble each other. No doubt this would furnish a reason why a person ignorant of telegraphic characters or unskilled in their reading, should misunderstand them. Such are not the persons that the defendants are permitted to employ in this business. Those engaged in it profess to understand the hieroglyphics. They have, themselves, invented or adapted them. They are bound, also, to use the machinery which will in the best and safest manner deliver to them the expected *Page 573 messages. Careless reading or ignorant management of the machinery is no excuse; it is simply an aggravation of the offence. The negligence was quite enough to justify the action.
The rule of damages adopted by the referee was the most favorable to the defendants of any that could have been applied, unless it should have been held that no recovery could be had beyond the price paid for the message. He gave the difference in the value of the salt at Oswego, on the day of its shipment, and its value in Chicago on the same day, together with the expense of transportation. Nothing was allowed for profits that might have been made on the fine salt ordered, or on the salt at Oswego, if it had not been sent, and no question of a falling market is in the case. The value of the salt at Oswego, where it would have remained except for the erroneous message, as compared with its value at Chicago, where the same error caused it to be sent, with the expense of so sending it, was the smallest allowance that could have been made. The case shows that the salt was actually sold in Chicago at a much greater loss, and that the plaintiffs were at an expense of several hundred dollars in storing the salt at Chicago. These items were not allowed. (Griffin v. Colver 16 N.R.R., 489; Blot v. Boiceau, 3 Coms., 78; Watkinson v. Laughton, 8 Johnson, 213; Amory v.McGregor, 15 Johns. R., 24; Richmond v. Bronson, 5 Denio, 55.)
If this is a question of contract, the point of the plaintiffs' negligence does not properly arise.
The breach of a contract by one party is not justified by the subsequent negligence of the other party. It can only be important on the question of damages. In actions of tort, where the plaintiff claims for the negligence of another, if he himself has been negligent, and thus contributed to his own injury, he can recover no damages; in every aspect of this point, the decision of the referee, implied in his finding, that there was no negligence on the part of the agent at Oswego, is conclusive. It might or it might not have been in his power to stop the sailing of the vessel on the 27th. It might *Page 574 or might not have cost less to stop it than to allow it to go on. We do not understand the rules regulating this subject, or their effect, as well as did the agent at Oswego, or as did the referee. We must rest upon the decision of this latter.
Judgment should be affirmed, with costs.