*28The following dissenting opinion was pronounced by
Appleton, C. J.This is an action on the case against the defendant corporation for negligence in not delivering a night message.
It is agreed that on the 12th of January, 1870, the plaintiff received a telegram from Radcliff & Patterson, of Baltimore, offering to sell them a cargo of corn at ninety cents per bushel; that the plaintiffs went to the office of the defendants, and, calling for one of the ‘night-message blanks,’ wrote thereon a telegram in reply, .which is made part of the case and will be hereafter considered.
This message was delivered to the clerk of the defendants and the sum of forty-eight cents paid for its transmission by night to Baltimore. The defendants the same night sent the message to Boston, which is the western terminus of their lines, and the same was thence forwarded by the Franklin Telegraph Company, with which the defendants have a business connection, making them responsible for the whole distance, the lines of the latter company extending through Baltimore to Washington. The telegram was never delivered to Radcliff & Patterson.
In the absence of any statutory enactment, any individual or corporation having acquired the right so to do from the patentee, may send messages for others by the telegraph. Before sending them, the operator may prescribe the terms upon which alone he will send them. If the terms are assented to, they constitute a contract between the sender and the individual or company agreeing to transmit them. The contract may limit the damages to any amount agreed upon, in case of failure to transmit. The telegraph company may warrant the transmission and make itself liable for all damages if the message is not received. It may require all messages to be repeated as a condition of its liability. It may limit the damages to fifty times the price paid for transmission ; or, in case the message is sent by night, to the repayment of the sum recéived. These, or any other terms, when understandingly agreed to, are as binding as any other contract, unless the general liberty of contracting in reference to sending telegraphic messages is inhibited. *29By the common law there was no such inhibition before this great discovery, for it was not foreseen that any such -would be made. There is none since, except as the result of some statute.
Now the liberty of contracting is unlimited except so far as it is affected by R. S., c. 53, § 1. This statute requires that messages should be sent in the order in -which they are received, and ‘ in case of any error or unnecessary delay in writing out, or delivering a dispatch within their delivery limits, making it less valuable to the person interested therein,’ the company ‘ shall be liable for the whole amount paid on such dispatch.’ By § 3 the company is made liable for fraud and is not exonerated ‘ from any liabilities existing at common law for any neglect or wrong-doing of such company or its agents, etc.
Subject to this statute, ‘ the obligation of the company to use due care and skill in the transmission of the messages, says Lush, J., in Playford v. United Kingdom Telegraphic Co., 11 Best & Smith, 759, ‘is one entirely arising out of the contract.’ The telegraph company may be liable to the party sending to the whole extent of the damages arising from a failure to. transmit, unless that liability can in some way be limited or restricted. There is no legal limitation upon the price for sending and that may be graduated according to the greater or lesser risk and according to the damages consequent upon a failure. If the price is too high for a guaranty, the party wishing to send may abstain from sending upon a warrant, or may stipulate for the transmission of the message at a less price for himself, and with a reduced claim for compensation against the operator or company.
The common-law liability will be for the payment of such damages as may be agreed upon in advance, or in case there is no agreement, for all damages naturally and directly resulting from the violated contract. In McAndrew v. Tel. Company, 84 E. C. L., 12, the defendants had their liability limited by certain rules and regulations, somewhat like those in the case under consideration. The counsel claiming to recover, notwithstanding their rules and regulations, Jervis, C. J., very pertinently asks, ‘ Do you maintain that *30the legislature meant to cast upon the company, for a reward of a few shillings, a liability to the extent of ¿610,000 or ¿6100,000 ?
No principle of public policy is adverse to these principles. Indeed the general liberty to contract is the highest policy. The telegraphic companies may, by express contract or by reasonable rules and regulations made known to those dealing with them, limit their liabilities.
The terms upon which the defendant company offered to transmit messages fully appear in the case.
When these terms are assented to by the signature of the party sending the message, as they were by the plaintiff in the present case, they constitute a contract, which not being at variance with any statute or any of the rules of the common law, is binding upon the party signing the agreement.
That a contract is thus created, and that so far as relates to messages sent by day it is binding, has been settled by the general current of authorities in this country. In Breese v. U. S. Telegraph Co., 45 Barb. 274, it -was held that a printed blank like the above, being filled up was a general proposition to the public of the terms and conditions upon which messages would be sent and the company become liable in case of error or accident; and that by writing a message .under such heading and signing and delivering it for transmission the sender accepted the proposition, and it became an agreement binding upon the company according to its terms and conditions. To the same effect are the cases of The Western Telegraph Company v. Carew, 15 Mich. 524; Camp v. Western Union Telegraph Co., 1 Met. (Ky.), 164. One of the conditions of a telegraph company, printed in their blank form, was that they would not he liable for damages if the claim was not presented in sixty days from sending the message. Held, the condition was binding on one sending the message on the printed form.
On the telegrams were printed these words : ‘ Send the following message subject to the above terms, which are agreed to.’ ‘ The message,’ remarks Agnew, J., ‘ followed immediately, signed with the name of the plaintiff’s firm. This, undoubtedly, amounted to a *31written agreement by the plaintiff, to send the message according to the terms.’ Wolf v. Western Union Telegraph Co., 62 Penn., 83. By this agreement the statute of limitations was restricted to sixty days. If this can be done by the agreement of parties, there would seem to be no doubt that they might agree upon the damages to be paid in case of a breach of the contract. To the same effect is the case of U. S. Telegraph Co. v. Gidersleeve, 29 Md. 232.
So, too, in England, and in some of the States, telegraph companies are authorized by statute to establish reasonable rules and regulations, and rules and regulations like those of the defendant corporation have received the sanction of the court. In McAndrew v. Telegraph Co., 84 E. C. L. 3, the plaintiff sent a message to the defendant’s office to be transmitted by the telegraph to a vessel lying off Exmouth, requiring the master to proceed with her to Hull. The message was received by the defendants, subject, among others, to the following conditions: ‘ The company will not be responsible for mistakes in the transmission of unrepeated messages from whatever cause they may arise.’ In the transmission of the message (which was an unrepeated one), ‘Southampton’ was by mistake substituted for ‘ Hull,’ in consequence of which the vessel went to the former place, and the plaintiff sustained loss in the sale of the cargo at a bad market. The point was taken that here was gross negligence, but the court unanimously sustained the defense. The rule'as to repeating messages was held a reasonable one. ‘ The public,’ observed Crowder, J., ‘ have thus the opportunity of transmitting unimportant messages for a small charge; or if it be a matter of importance they may, at a moderate additional charge, have the message repeated, and so obtain a certainty almost of its being transmitted with perfect accuracy. I see nothing unreasonable in that.’ The reasonableness of this as a regulation was affirmed in Ellis v. Telegraph Co., 13 Allen, 226; Albany & Buffalo Telegraph Co. v. DeRulte, 1 Daly, N. Y. 547. In U. S. Telegraph Co. v. Gildersleeve, 29 Md. 232, Alvey, J., says ‘the appellant had a clear right to protect itself against extraordinary *32risk and liability, by such rules and regulations as might be required for the purpose.’
The question of liability before us ai’ises as to the effect of the agreement between the parties as to night messages, limiting the liability of the defendant to the repayment of the amount received.
The defendants were under no obligation to send their messages by night. If for the accommodation of the public, they do it upon terms and conditions neither at variance with common nor statute law, to which the sender accedes, why should he not be bound by his deliberate assent thereto equally in this as in other cases.
The company transmit messages for different rates of compensation, and at different risks in case of failure, however caused. It insures the delivery of the message, at all events, for a premium. It becomes responsible for fifty times the sum received for a repeated message. It sends in the night at a much reduced price, and the sender agrees that the company shall not be liable for mistakes or delays in the transmission or delivery or for non-delivery of any message beyond the sum received. ‘ The appellee,’ remarks Alvey, J., in U. S. Telegraph Co. v. Gildersleeve, ‘by requiring the message to be repeated, could have assured himself of its dispatch and accurate transmission to the other end of the line, if the wires were in working condition; or by special contract for insurance, could have secured himself against all consequences of non-delivery. He did not think proper, however, to adopt such precaution, but chose rather to take the risk of the less expensive terms of sending his message.’ So here the sender chose the cheapest mode of transmission, agreed to the damages in case of non-delivery, and now claims to impose upon the corporation the liabilities incurred by a day message on more expensive terms. We perceive no reason why he should not be held to his contract.
The ordinary risks of transmission by telegraph by day, are increased when the message is sent by night. The operator at some: station on the line may have left his post; the messenger may be absent; the price paid is less than in the day ; the message, it may be presumed, is of minor importance; the greater diligence of the *33day is not contracted for; the company says, I will send your message by night or repay you the money received for its transmission; the chance of its transmission is less than by day; my price is less; my interest is to send all messages, for it is my business, but if you choose to send by night, the only risk I will run is that of repayment ; I am not compelled to transmit it by night. The sender agrees to this; here is a contract; the consideration is sufficient; it is entered into by parties competent to contract; there is no statute prohibiting; it is a contract for the liquidation of damages, and if there is anything parties can do without let or hindrance, it is to agree in advance upon the damages to be paid in case of a violated contract. Whether the damages thus agreed upon are large or small, is a matter for the contracting parties, and for them alone. If they are satisfied with large or small damages it matters not to any one else.
But in this case the damages agreed upon are precisely those prescribed by R. S., c. 53, § 1. If it be said that the company is not exonerated ‘ from any liabilities existing at common law,’ that does not alter the result. The common-law liabilities are those arising from contract express or implied. Whatever they may be, they may be waived or modified by contract. But arising from contract, the damages may be agreed upon in advance as well as in any other case.
So if these conditions are to be regarded as rules and regulations, it is difficult to see why they are not reasonable and just.
It is said the defendants are common carriers. It is not so. The resemblance is but fanciful. They are not subject to the same legal rules and liabilities as common carriers. Breese v. U. S. Telegraph Co., 45 Barb. 271. ‘The reasons of policy and expediency on which the rule of the common law is founded which imposes on carriers of goods a liability for all losses not caused by the act of God or the public enemy,’ observes Bigelow, C. J., in Ellis v. American Telegraph Co., 13 Allen, 226, ‘do not apply to the business of transmitting messages by means of the electric telegraph.’ So in The Western Telegraph Co. v. Carew, 15 Mich. 524, it was held that *34telegraph companies in the absence of any provision of the statute, are not common carriers, and their obligations and liabilities are not to be measured by the same rules. ‘ I can find no authority,’ observes Hunt, J., in Leonard v. The N. Y. Telegraph Co., 41 N. Y. 571, ‘ 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.’ Whether the liability of the telegrapher is based upon the contract he makes or upon his public duty, he does not come within any of the principles applicable to a common carrier.’ In Smithson v. U. S. Telegraph Co., 29 Md., 167, Nelson, J., in delivering the opinion of the court, says ‘ The defendants were bailees, not common carriers, and not to be held to the rigid and strict accountability of common carriers,’ etc.
To the same effect is an English decision, Playford v. United Kingdom Electric Telegraph Co., 11 Best & Smith, 759.
But if they were common carriers, the party sending his message might waive his common-law rights, and might limit the liability of the canler to an amount as much less than that established by law, as he might deem expedient, as is done in the case of a carrier of goods. ‘ A public carrier,’ observes Bigelow, C. J., in Judson v. Western R. R. Co., 6 Allen, 489, ‘ may enter into a special contract with his employer, by which he may stipulate for a partial or entire exoneration from his liability at common law as an insurer of property committed to his custody, and such contract is not contrary to public policy, or invalid as transcending the just limits of the rights of parties to regulate their dealings by special stipulations. As a necessary corollary of this conclusion, it is also held in the best considered text-writers, that a notice by a carrier that he will not assume the ordinary responsibility imposed on him by law, if brought home to the owner of goods delivered for transportation, and assented to clearly and unequivocally by him, will be binding and obligatory upon him, because it is tantamount to an ex*35press contract, that the goods shall be carried on the terms specified in such notice.’ In Austin v. Manchester, &c., Railway Co., 70 E. C. L., 453, horses were delivered to a railway company to be subject to a note or ticket containing the following notice : ‘ This ticket is issued subject to the owner’s undertaking to bear all the risk of injury by conveyance and other contingencies, etc., the charges being for the use of the railway carriage and locomotive power only, the company will not be responsible for any alleged defects in their carriages or trucks, unless complaint be made at the time of booking or before the same leave the station; nor for any damages, however caused, to horses, cattle or live-stock of any description traveling upon their railway or in any of their vehicles.’ This contract was held valid and binding upon the parties. ‘ The question,’ observes Creswell, J., ‘ therefore still turns upon the contract, which, in express terms, exempts the company from responsibility from damages, however caused, to horses, etc. In the largest sense, these words might exonerate the company from responsibility, even for damage done willfully, a sense in which it is not contended that they were used in this contract. But giving them the most limited meaning, they must apply to all risks of whatever kind, and however arising, to be encountered in the course of the journey; one of which, undoubtedly, is the risk of a wheel taking fire, owing to a neglect to grease it. Whether that risk is called negligence merely, or gross negligence, or culpable negligence, or whatever other epithet may be applied to it, we think it is within the exemption from responsibility provided by the contract; and that such exemption appearing on the face of the declaration, no cause of action is disclosed, and that judgment must be arrested.’
In Can v. L. & Y. Railway Co., 7 Exch., 707, it was decided, that when a railway company had made a contract, in which it was stipulated that they shall not be answerable for any accident, however caused, the contract bound the party, and the company was not answerable for any loss or injury though occasioned by their own negligence. In Simons v. The Great Western Railway Co., 86 *36E. C. L., 805, the conditions were, ‘ That no claim for damages will be allowed unless made within three days after the delivery of the goods, nor for loss, unless made within three days of the time that they should be delivered,’ and ‘ in the case of goods conveyed at special or mileage rate, the company will not be liable for any loss or damage, however caused,’ were held just and reasonable, much more would a mere limitation of damages be held reasonable, especially if assented to. In Walker v. York & Midland Railway Co., 75 E. C. L., 750, the defendants printed notices declaring that they would not carry fish except on terms relieving them from all responsibility, and declaring that their servants had no authority to alter these terms. A notice was served on the plaintiff, who notwithstanding sent his fish. ‘ If a man,’ says Wightman, J., ‘ is' told that goods will not be received, except on certain terms, and, notwithstanding this, he will send the goods, I think he must be taken to agree that they shall be taken on those terms.’ The verdict for the defendants was not set aside.
The defendants proposed to transmit night messages only on certain terms and conditions. To these the plaintiffs acceded and sent their message to them. Here is a contract between the parties. It is against no statutory provision. It is at variance with no rule of the common law.
After a breach the parties may agree upon any sum as damages. They may equally well do it before. It is incident to the general right to contract, with which no court can interfere, as long as the contract is not prohibited by law. The agreement made is lawful. It is binding. It should be enforced equally as any other case.
It results from these views, that telegraphic companies are not common carriers and not subject to their liabilities.
They may limit their liabilities by express contract, or by rules made known to those dealing with them.
When these terms are assented to by the parties sending the message, they constitute a contract, which if not at variance with the statute or the common law, is binding upon the party signing the same.
*37The limitation as to damages, that the company is liable only to repay the sum received in case of a failure to deliver a night message is not at variance with the statute nor with any rule of the common law.
The plaintiff having assented and agreed to the same is limited in his damages to the amount paid for the transmission of his message, there being a failure of its delivery.
Damages for the breach of a contract may as well be agreed upon before, as after such breach, and such agreement is binding in each case.
In my judgment, a default should be entered for .forty-eight cents damages.