There was never any agregatio mentium, or meeting of the minds of the parties in respect to the purchase and sale of the dollars in question. The plaintiffs failed to notify the defendants of the acceptance of their offer until after the defendants had countermanded' or recalled it.
The plaintiffs must be regarded as having undertaken on their part to bring to the defendants the knowledge of their acceptance or refusal of the offer made. The parties had agreed beforehand that their communications should be made by telegraph. This in effect was a warranty by each party that his communication to the other should be received. It cannot be supposed that the party who was to receive the communication was willing to incur the hazard of a safe delivery of the messages of the other party with whom he was in treaty through the medium of the telegraph.
The communication is only initiated when it is delivered to the telegraphic operator. It is completed when it comes to the possession of the party for whom it is designed.
We think that the rule that has been established by the courts in respect to contracts made by letters sent through, the mail, is not applicable to communications by telegraph. *269(Mactier v. Frith, 6 Wend. 103. Vassar v. Camp, 1 Kernan, 441.)
[New York General, Term, February 1, 1864.The public post office is governed by no private interests. The officers who direct its operation are regulated by law, and its violation is punished criminally. The operators of the telegraph are appointed or employed by private enterprise, and are responsible to those who employ them for the proper performance of their service. There are also other distinctions. The telegraphic companies have been conducted, so far as has come to my knowledge, with great integrity and fidelity, but an institution of that description cannot, while conducted by private enterprise, be so clothed with a public official character as to make the receipt of a communication at the office of the telegraph company of the same effect, in relation to the acceptance of an offer by a contracting party, as the actual delivery of it would have.
The judgment should be reversed, and a new trial had before the same referee. The costs of the appeal to the appellant to abide the event.
Leonard, Sutherland and Clerke, Justices.]