Thurn v. Alta Telegraph Co.

Citations

• 15 Cal. 472

Syllabus

<p>Where a Telegraph Company fails to transmit a message, upon compliance by the person contracting with it, with the conditions required by sec. 154 of the Act of 1850, (370) an action for the penalty given by the act lies in favor of such person.</p> <p>The sum to he recovered is a penalty for a breach of the duty to transmit the message, and the act is, in this section, a penal law, to be strictly construed.</p> <p>Under the above section, the person entitled to recover the penalty is the party who contracts or offers to contract for the transmission of the dispatch. He may, probably, do this by his agent or servant; but when the contract is made by a party as agent of another, in order to give a right of action to the principal, the fact of agency must be shown,</p> <p>Proof as follows : “ I am Superintendent of the California State Telegraph Company, and operator in their office at San Francisco. July 2d, plaintiff came to our office, and delivered a message to be transmitted to Jackson, and paid for transmitting it there. The message was : “ Alta Express Co., Jackson: If you have package for me, forward immediately.” Signed “ C. Thurn.” In the margin of the message sent, were the words “F. July 2d.” Few words passed when the message was delivered; no express agreement that the Cal. State Telegraph Co. should forward the message to Sacramento, and employ the Alta Cal. Telegraph Company to transmit it from there to Jackson. He must have known that we could not send it to Jackson, as we had no line there. I think there was something said about sending it by the defendant’s line from Sacramento.” C. Thurn, the plaintiff, sues the Alta Telegraph Co. for the penalty, under the one hundred and fifty-fourth section of the Act of 1850 (370). Held, that under these facts, he is not the person making or offering to make ■ the contract, within the meaning of the act, and cannot recover; that the only contract proven is a contract by the State Telegraph Co. to send the mes