MacAndrew and Others v The Electric Telegraph Company
| Jurisdiction | England & Wales |
| Judgment Date | 03 November 1855 |
| Date | 03 November 1855 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 965
IN THE COURT OF COMMON PLEAS.
S. C. 25 L. J. C. P. 26; 1 Jur. N. S. 1073.
COMMON BENCH REPORTS. CASES ARGUED and DETERMINED in the COURT of COMMON PLEAS and EXCHEQUER CHAMBER, in Trinity and Michaelmas Terms, 1855, and Hilary Term and Vacation, 1856. By JOHN SCOTT, Esq., of the Inner Temple, Barrister - at - Law. Vol. XVH. London, 1856. [1] cases argued and determined in the court of common pleas, in michaelmas term,: in the nineteenth year of the keign of victoria. The judges who usaally sat in banco in'this term, were,-Jervis, C. J., Williams, J., Crowder, J., and Willes, J: [3] MACANDJREW AND OTHERS V. THE ELECTRIC TELEGRAPH COMPANY. Nov. 3,: 1855. [S. C. 25 L. J. C. P. 26;. 1 Jur. N. S. 1073.] The 66th section of the Electric Telegraph Company's Act, 1853-16 & 17 Viet, c. cciii.,-enacts, "that the use of any electric telegraph erectedor formed under the provisions of the act for the purpose of receiving and sending messages shall, subject to the prior rights of use thereof for the service of Her Majesty and for the purposes of the company, and subject also to such reasonable regulations as may be from time to time made or entered into by the company, be open for the sending and receiving of messages by all persons alike without favour or preference."-The plaintiffs sent a message to the defendants' office, to be transmitted by their telegraph to a vessel lying off Exmouth, requiring the master to proceed with her to Hull. The message was received by the defendants, subject, amongst others, to the following condition, -"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 plaintiffs sustained loss in the sale of the cargo (oranges) at a bad market: -Held, that the above condition was a reasonable one within the 66th section of the act, and afforded an answer to the action. This was an action against the Electric Telegraph Company for negligence in the transmission of a message. The first count of the declaration stated, that, before and at the time of making the agreement and promise [4] thereinafter mentioned, the defendants carried on the 966 MACANDREW V. THE ELECTRIC TELEGRAPH COMPANY 17 C. E. 5. business, amongst other things, of transmitting and giving effect by means of the telegraphs and apparatus of them the defendants, and otherwise, to intelligence and messages, for certain hire and reward in that behalf; and the plaintiffs were desirous that the defendants should transmit and give effect as aforesaid to a certain message which the plaintiffs were then desirous of having transmitted from London to the master of a certain ship or vessel of the plaintiffs called the " Foam," then lying off Exmouth Point, which said message was the following, that is to say, " ' Foam,' proceed to Hull immediate;" and thereupon, and before suit, in consideration that the plaintiffs, at the request of the defendants, would pay to the defendants the sum of 10s., the defendants promised the plaintiffs that they would transmit Sueh message to the said master: Averment, that, although the plaintiffs paid the sum of 10s. to the defendants, yet the defendants wholly neglected to and did not transmit the said message, but another and a different message, to wit, in the'words following, to wit, "'' Foam,' proceed to Southampton immediate," and thereupon the said master proceeded with the said ship to Southampton instead of to Hi5.ll, as he otherwise- woiild have done, and there landed and discharged her cargo at Southampton, and the plaintiffs lost and were deprived of 1881. 18s.. 10d., which they would have gained had the said ship proceeded to Hull, over and above what her cargo realized when discharged at Southampton, and were put to further expenses, to wit, 461. Is. 4d.,, by reason of the defendants' having so made default as aforesaid. There were also counts for money paid, money had and received, and money found due upon an account stated. s ' : The defendants pleaded,-first, that they did not pro-[5]-mise as alleged,-secondly, as to the first count, that they made the prbmise therein mentioned under, and subject to a certain condition, that is to say, that the defendants would not be responsible for mistakes in the transmission of unrepeated messages, from whatever cause they might arise; that the message in the first count mentioned was an unrepeated message; and that the substitution of the word "Southampton "for'the; word-"Hull" in the said message as delivered, was and arose from a mistake within the meaning of the said condition,-thirdly, as to the residue of the declaration, except as to 10s., parcel of the moneys therein mentioned,, never mdebted,-^--fourthlyj payment.into court of 10s. The plaintiffs joined issue upon the first and third pleas; and, as to the second plea, they took issue thereon, and also replied that the said promise and condition therein mentioned were respectively made after the passing and coming into operation of "The.Electric Telegraph Company's Act, 1853," and related to and were for the use of an electric telegraph erected under tke provisions of the said act for the purpose of sending a message under the said act for the sending whereof the use of the said electric telegraph was, open to, the .plaintiffs according :to the said act, subject to the prior rights of use thereof for the service of Her Majesty and for the purposes of the said company; that.the said company hadtat-all times refused to...
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