tion by its limitation of liability for mistakes | telegram, beyond fifty times the sum received for in transmission. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. 88 45, 46; Dec. Dig. 54(7).] 3. TELEGRAPHS AND TELEPHONES 54(7) [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 45, 46; Dec. Dig. 54(7).] Error to Law and Chancery Court of City of Norfolk. Action by W. P. Boyce against the Western Union Telegraph Company. Judgment for plaintiff, and he brings error. Affirmed. Jas. G. Martin, of Norfolk, for plaintiff in error. Hughes, Little & Seawell, of Norfolk, for defendant in error. HARRISON, J. This action was brought by W. P. Boyce, a horse dealer in Norfolk, Va., to recover from the defendant telegraph company damages alleged to have been sustained by its negligence in the transmission of a message. sending the same, unless especially valued, nor in any case for delays arising from unavoidable interruption in the working of its lines, nor for errors in cipher or obscure telegrams." This being an interstate message, the court below sustained the validity of this stipulation and entered judgment in favor of the plaintiff for 50 cents, the sum paid by him for transmitting the message. The contention of the defendant company is that the stipulation in question, in an unrepeated interstate message, that any recovery shall be limited to the cost of the message, is reasonable and valid, and should be enforced; that it is reasonable, especially in view of the business transacted by the company, which does not deal in a tangible piece of property such as a carrier does in handling freight capable of an intrinsic value of its own; that, owing to the peculiar nature of the employment and the extraordinary risks attending it, it is only equitable that the company should avail itself of the precaution of a repeated message in order to avoid mistakes, and at the same time, in case of an important message, protecting the sender against such mistakes by the payment of a small increased rate; and that the importance of a message can only be estimated by the sender, as it has no value of its own, and, if it is not sufficiently important to be repeated, there is no standard whereby the comthe amount paid for its handling. pany can place a valuation upon it except by [1] The message was sent April 10, 1914, from Norfolk, addressed to Bear Brothers, Belleville, Ill., ordering a shipment of mules. It was sent as an unrepeated night letter, in order to secure a cheaper rate. During the numerous relays between the points of origin and destination the word "and' was trans-ent case. It is there said: mitted "no," making the telegram read "ship me fifteen mules all mares no extra good," instead of "ship me fifteen mules all marès and extra good." The blank on which the message was written at the plaintiff's office was, when delivered, pasted on a night letter blank in the presence of the plaintiff's agent, in pursuance of his instruction to send it as a night letter. Both the blank on which the message was first written and that to which it was attached by the telegraph company contained a stipulation to the following ef The leading case on this subject is Primrose v. Western U. Tel. Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883, decided in 1893. In that case the same stipulation was involved that we are dealing with in the pres fect: "All telegrams taken by this company are ject to the following terms: graph company has not undertaken to wholly ex"By the regulation now in question the teleempt itself from liability for negligence, but only to require the sender of the message to have it repeated, and to pay half as much again as the usual price, in order to hold the company liable for mistakes or delays in transmitting or delivering, or for not delivering a message, whether happening by negligence of its servants, or otherwise. "In Western Union Tel. Co. v. Hall, 124 U. S. 444, 453 [8 Sup. Ct. 577, 31 L. Ed. 479], the effect of such a regulation was presented by the certificate of the circuit court, but was not passed upon by this court, because it was of opinion that upon the facts of the case the damages sub-claimed were too uncertain and remote. But the reasonableness and validity of such regulations have been upheld in McAndrew v. Electric Tel. Co., 11 C. B. 3, and in Baxter v. Dominion Tel. Co., 37 Upper Canada Q. B. 470, as well as by the great preponderance of authority in this country. Only a few of the principal cases need be cited. "To guard against mistakes or delays, the sender of a telegram should order it repeated, that is telegraphed back to the originating office for comparison. For this, one-half the unrepeated telegram rate is charged in addition. Unless otherwise indicated on its face, this is an unrepeated telegram and paid for as such, in consideration whereof it is agreed between the sender of the telegram and this company: "(1) The company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated telegrams, beyond the amount received for sending the same, nor for mistakes or delays in the transmission or delivery, or for nondelivery, of any repeated "In the earliest American case, decided by the Court of Appeals of Kentucky, the reasons for upholding the validity of a regulation very like that now in question were thus stated: "The public are admonished by the notice that, in order to guard against mistakes in the transmission of messages, every message of importance ought to be repeated. A person desiring to send a message is thus apprised that there may contention. The clause of the act applicable is as follows: be a mistake in its transmission, to guard against | Commerce Act relied on is not subject to the which it is necessary that it should be repeated. interpretation called for by the plaintiff's He is also notified that, if a mistake occur, the On the contrary, Congress, by company will not be responsible for it unless the message be repeated. There is nothing unrea- the act of June 18, 1910, seems to recognize sonable in this condition. It gives the party the necessity and validity of such stipula sending the message the option to send it in tions, and to authorize the making of such such a manner as to hold the company responsible, or to send it for a less price at his own contracts with respect to repeated and unrisk. If the message be unimportant, he may repeated messages. be willing to risk it without paying the additional charge. But, if it be important, and he wishes to have it sent correctly, he ought to be willing to pay the cost of repeating the message. This regulation, considering the accidents to which the business is liable, is obviously just and reasonable. It does not exempt the company from responsibility, but only fixes the price of that responsibility, and allows the person who sends the message either to transmit it at his own risk at the usual price, or by paying in addition thereto half the usual price to have it repeated, and thus render the company liable for any mistake that may occur.' [Camp v. Western Union Tel. Co., 1 Metc. (Ky.) 164, 168, 71 Am. Dec. 461.] "If the change of words in the message was owing to mistake or inattention of any of the defendant's servants, it would seem that it must have consisted either in a want of plainness of the handwriting of Tindall, the operator who took it down at Brookville, or in a mistake of his fellow operator, Stevens, in reading that writing, or in transmitting it to Ellis, or else in a mistake of the operator at Ellis in taking down the message at that place. If the message had been repeated, the mistake, from whatever cause it arose, must have been detected by means of the differing versions made and kept at the offices at Ellis and Brookville. "The conclusion is irresistible that, if there was negligence on the part of any of the defendant's servants, a jury would not have been warranted in finding that it was more than ordinary negligence, and that, upon principal and authority, the mistake was one for which the plaintiff, not having had the message repeated according to the terms printed upon the back thereof, and forming part of his contract with the company, could not recover more than the sum which he had paid for sending the single message. Any other conclusion would restrict the right of telegraph companies to regulate the amount of their liability within narrower limits than were allowed to common carriers in Hart v. Pennsylvania Railroad [112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717]." The conclusion of the Supreme Court in the foregoing case that a stipulation such as that in the case at bar, providing that the company shall not be liable for mistakes in transmission or delivery beyond the sum received for sending it, unless the sender orders it to be repeated, it is reasonable and valid, and that the recovery cannot exceed the amount agreed upon in that stipulation, has been followed in numerous cases which need not be cited. The contention, however, on behalf of the plaintiff is that, inasmuch as the Supreme Court in the Primrose Case, supra, held that telegraph companies were not common carriers, and the act of Congress of June 18, 1910, to regulate commerce, since passed, declares such companies to be common carriers, as such they cannot contract against their own negligence, and therefore that the Primrose Case, supra, and those following it are no longer applicable or of any force as "All charges made for any service rendered or to be rendered in the transportation of passengers or property and for the transmission of messages by telegraph, telephone, or cable, as aforesaid, or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful: Provided, that messages by telegraph, telephone, or cable, subject to the provisions of this act, may be classified into day, night, repeated, unrepeated, letter, commercial, press, government, and such other classes as are just and reasonable, and different rates may be charged for the different classes of messages." So that telegraph companies, have here the direct authority and sanction of Congress to classify their messages into repeated and unrepeated messages, and to charge different rates for each; in other words, to enter into the very contract which was made in this case. The most recent case passing upon this stipulation, in the light of the congressional legislation, is that of Haskell, etc., Co. v. Postal Telegraph Co., 114 Me. 277, 96 Atl. 219, decided by the Supreme Court of Maine. After quoting the portions of the act applying to telegraph companies and discussing the Ayer Case, 79 Me. 493, 10 Atl. 495, 1 Am. St. Rep. 353, cited by that plaintiff, the court says: "Many changes have occurred in business and business regulation in the 28 years since the decision in the Ayer Case and the creation of the stands, but the Commerce Act has expanded unInterstate Commerce Commission. The decision til it comprehends and includes the questions involved in the case at bar, and, so including, it must perforce, being the supreme law, suspend the operation of any state statute or regulation, or the force and effect of any decision in opposition thereto, the Ayer Case among the rest, so far as they conflict with the act of June 18, 1910. This rule does no violence to any state, corporation, or individual, and is in keeping with the sentiment and reasons underlying sound public policy, the highest good, the best interest of all the people, not that of one state or 1910, telegraph companies have been made comone locality. By the act of June 18, mon carriers within the meaning and subject to the provisions of the Interstate Commerce Act. Being so subject, as to all questions of classily where, as in this case, the reasonableness of fication, regulation, and procedure, and especialthe rules and charges, and the limitation of liability, are in question, state courts are without jurisdiction, and such cases must be brought in the federal court, or be submitted for the determination of the Interstate Commerce Commission, as in the case of other common carriers coming within the administrative competency of that Commission. "It is the opinion of the court that the defendant was not liable for any greater sum than In the case of H. B. Williams, Inc., v. I because neither the plaintiff nor his agent Western Union Tel. Co. (D. C.) 203 Fed. 140, knew that there was such a stipulation, and which arose after the passage of the act in that the telegram handed the company was question, in the transmission of the telegram pasted on the night telegram blank under the word "fifth" was changed to "first," and such circumstances that his agent did not the same stipulation as to an unrepeated handle the night telegram blank, nor read the message was at issue. The court, after quot- same, nor have any opportunity to read it. ing copiously from the opinion of the Supreme Court in the Primrose Case, and quoting the act of Congress so far as applicable, Another very recent case passing upon this question in the light of the act of Congress is that of Telegraph Co. v. Dant, decided by the Court of Appeals of the District of Columbia, 42 App. D. C. 398, L. R. A. 1915B, sages.' * The testimony of the plaintiff himself shows that he had been in business for about 30 years, that during that time he frequently sent and received telegrams, and that he kept the blanks in his office. He says he knew that there was something printed on the blanks, but that he had never read it, and did not know what it was. On the face of these blanks there is printed in large black type the following: "Send the following telegram subject to the terms on back hereof, which are hereby agreed to." And the first stipulation at the top of the page is the one at issue in this case. The plaintiff's alleged inattention during his long years of familiarity with and use of telegrams cannot now be relied upon to defeat the defendant company of the protection to which it is entitled. To do so would be to allow the plaintiff to profit by his own neglect. 685, Ann. Cas. 1916A, 1132. The court said: "The applicable portions of the act of June 18, 1910, entitled 'An act to create a commerce court and to amend the act entitled "An act to regulate commerce," * * read: 'All charges made for the transmission of messages by telegraph, telephone, or cable, as aforesaid, or in connection therewith, shall be just and reasonable: * * Provided, that messages by telegraph, telephone, or cable, subject to the provisions of this act, may be classified into day, night, repeated, unrepeated, letter, com- blanks, or procures another as his agent to write "When one writes a message upon one of these mercial, press, government, and such other class- it for him, and signs the same, or procures his es as are just and reasonable, and different rates agent to sign his name to it, without dissent, he may be charged for the different classes of mes- will, in the absence of fraud, be estopped from By this act express authority denying the binding force of such regulations on is given for the different classifications of mes- the message, as to which we have referred, notsages, and the charge of different rates for the withstanding he did not read them. He will different classes is also expressly authorized. not be permitted to show that he did not read or Repeated and unrepeated messages were well understand the conditions contained in the known to the art, and, of course, it must be pre-printed regulations." Telegraph Co. v. Prevatt, sumed that Congress intended the words to be 149 Ala. 617, 43 South. 106. given their ordinary meaning. Prior to the enactment of this statute, as we have seen, the court of last resort had ruled that, in the absence of state statutes to the contrary, it was competent for a telegraph company to make such classification of its messages. Primrose v. Western Union Tel. Co., 154 U. S. 1 [14 Sup. Ct. 1098, 38 L. Ed. 8831. Congress therefore, in express terms, has sanctioned the practice theretofore existing." The Supreme Court of Texas holds in favor of the contention of the plaintiff. We are, however, of opinion that the weight of authority and the better reason sustain the conclusion we have reached that the defendant company is entitled to the protection af forded it by the stipulation in question, and is only liable to the plaintiff for the cost of transmitting the unrepeated message sent by him. The plaintiff further contends that the classification and stipulation of the company for interstate messages had never been submitted to the Interstate Commerce Commission, nor in any wise authorized. It is sufficient to say that the act of Congress bringing telegraph companies under the regulation of the Interstate Commerce Commission does not require them to file their contract forms or tariffs with the commission. [2] The plaintiff further contends that the In Breese v. U. S. Tel. Co., 48 N. Y. 132, 8 Am. Rep. 526, it is said: "A party using such a blank, and writing his dispatch thereon, assents to the terms and conditions on which it is to be sent. If he omits to read or to become informed of them, it is his own fault. A contract voluntarily signed and executed by a party, in the absence of misrepresentation or fraud, with full opportunity of information as to its contents, cannot be avoided on the ground of his negligence or omission to read it, or to avail himself of such information." The current of decisions on this point is in line with those from which we have quoted. Redpath v. Tel. Co., 112 Mass. 71, 17 Am. Rep. 69; Cole v. Tel. Co., 33 Minn. 227, 22 N. W. 385; Becker v. Tel. Co., 11 Neb. 87, 7 N. W. 868, 38 Am. Rep. 356. [3] There is no merit in the contention that the stipulations contained in the night letter blank did not form part of the contract of transmission because the clerk of the company attached the blank on which the message was originally written to the night letter blank. This was done in the presence of the plaintiff's agent, who requested that the message be sent as a night letter, and manifestly for the purpose of saving him the trouble of writing it over on the night letter blank. The stipulation in the night blank used by the plaintiff, so that it is immaterial whether he treats the first or second blank as his contract. windows of its salesroom displayed signs that it was agent for those machines, and it was known to the trade in Richmond as general By There is no error in the judgment com- agent for the sale of Baker electrics. plained of, and it is affirmed. Affirmed. CARDWELL, J., absent. (119 Va. 26) BROAD STREET BANK et al. v. BAKER (Supreme Court of Appeals of Virginia. June 8, PRINCIPAL AND AGENT 103(10)-POWER TO Plaintiff authorized its agent in a city to sell an automobile belonging to it, on which the agent's sale commission was $680, to a news paper company for $1,500 in cash and $1,200 in advertising. The machine was delivered and the newspaper company gave its $1,500 check to the agent and entered on its books an advertising credit for the agent of $1,200. An indebtedness of the agent for $460, then standing on the books of the newspaper company, operated to reduce the $1,200 credit by that amount. Held, that title passed and no recovery could be had in detinue; the application of the $460 on the credit not being prejudicial to plaintiff because that sum was less than the agent's commission then unpaid. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 287, 355, 3552; Dec. Dig. 103(10).] Error to Hustings Court of Richmond. Action by the Baker Motor Vehicle Company against the Broad Street Bank and others. Judgment for plaintiff, and defendants bring error. Reversed, and judgment for defendants. laration. general course of business between the parties it was customary for the Worth Company to find a purchaser for a car, and to send in an order for the same to the Baker Company, giving name of prospective purchaser, and specifications by which the car was to be constructed. In shipping, the Baker Company would send a bill of lading drawn to its own order, with draft attached, either upon the purchaser or the Worth Company, through a Richmond bank; and if drawn on the former, the Worth Company would be notified by letter. If the draft was for the catalogue price of the car, upon its payment the Baker Company would remit to the Worth Company, for its compensation in effecting the sale, the difference between the catalogue price and the dealer's price. In October, 1912, the Worth Company sent in an order from O. D. Pitts for a Baker electric, of the description and price of the car in controversy, which order likewise included two other cars. The order recites the payment of $1,000, $500 paid in money, and $500 represented the amount allowed for a station wagon taken in exchange for the Pitts car. Upon that order two machines were shipped on February 13, 1913, and the bills of lading forwarded through the Broad Street Bank, with instructions to deliver the machines upon payment of a draft on the Worth Company for $2,800, and the signing of a contract covering two cars, one of which was the Pitts car in litigation. The and recites that the cars are to be held as contract ignores the payment made by Pitts the property of the Baker Company. The troversy was $2,020, while that named in dealer's price named for the machine in conPitts' order is $2,700; the difference, $680, Pitts was not notified that the car had been being the compensation of Worth Company. shipped, and did not know of its arrival in Richmond until it had been in use for some time by Richards, the president of the Worth Company, and he declined to accept it. Be The following is a summary of the mate-fore the arrival of the Pitts car, negotiations rial facts from the standpoint of a demurrer to the evidence: Appellee, hereinafter called the Baker Company, is a corporation of Cleveland, Ohio, engaged in the manufacture and sale of automobiles. Desiring to intro duce its cars in the city of Richmond, in the year 1910, it formed a business connection with the Worth Auto Sales Company (later known as Worth Electric Vehicle Company), styled herein the Worth Company, by which the latter company was given the exclusive right to sell Baker machines in Richmond, and only dealt in those machines. The Worth Company advertised the Baker electrics in the daily city papers, and the were pending between the Worth Company and the Times-Dispatch for the sale of a machine to be used as a prize by the latter company in a circulation contest. By letter of February 19, 1913, the Worth Company agreed to sell the Times-Dispatch a machine corresponding to the description of the Pitts machine for $2,700, f. o. b. Richmond, $1,500 cash and a duebill for $1,200 in advertising, the advertising space to be used within twelve months, and the car to be delivered April 13, 1913. On March 12, 1913, the Baker Company specifically authorized the Worth Company to sell the Pitts car to the TimesDispatch upon the above-mentioned terms. In fulfillment of the agreement, the Times- quoting Benjamin on Sales, rule 23, p. 87, Dispatch gave its check for $1,500 and enter-that: ed on its books an advertising credit for $1,200. It also gave a written order to Mrs. Asher, who was declared the winner, for the Baker car. The Pitts car was delivered and accepted in satisfaction of that order, and shortly thereafter the machine was sold and delivered by Mrs. Asher to Cunningham Hall. In our view of the case, subsequent transfers of the car are immaterial. "Until the specific goods upon which the contract is to operate are agreed upon, the contract is not a sale but an agreement to sell goods of a particular description. If the specific goods are not ascertained by the agreement, the property does not pass until an appropriation of specific goods to the contract is made with the assent of both parties." That was done in this case. The Pitts machine was appropriated by the Baker Com Having reached the conclusion that the Baker Company was devested of its title to the Pitts machine by the sale to the Times-Dispatch, and the transfer to Mrs. Asher, the subsequent misconduct and bankruptcy of the Worth Company is immaterial. Company having parted with the legal title and never having acquired it again, could in no aspect of the case maintain detinue to recover the machine. CARDWELL, J., absent. The Baker At the date of the entry of the $1,200 ad-pany to the contract, and accepted by the asvertising credit, the books of the Times- signee of the Times-Dispatch, which satisfied Dispatch showed an indebtedness, as of Jan- the requirement of rule 23. uary 1, 1913, by the Worth Company to it of $400.35 for prior advertising, with which amount the $1,200 was credited. Upon that circumstance the Baker Company grounds its contention, and the case depends upon its ability to establish the proposition that that fact per se avoided the sale. The method of bookkeeping of the Times-Dispatch does not concern us; nor have we any quarrel with the just and well-settled principle that an For these reasons the judgment must be agent with power to sell has no power to bind his principal either by pledging or sell-reversed, the demurrer to the defendants' ing the principal's goods as a security for or the appellants upon the verdict provisionally evidence overruled, and judgment entered for in discharge of his own debt. The rule that found by the jury. he possesses no such power is elementary and Reversed. universal in its application. Such a transaction furnishes inherent evidence of obliquity and necessarily carries notice to one knowingly dealing with an agent. Yet, obviously, the doctrine has no bearing upon the facts of this case. It will be remembered that by general compact between the Baker Company and the Worth Company, the compensation of the latter for effecting the sale of a car was the difference between the catalogue price and the dealer's price, which in the case of the Pitts car was $680. The substitution by the Baker Company of the Times-Dispatch for Pitts as the purchaser of the Pitts car did not vary the original price of the machine; and upon a demurrer to the evidence, in the absence of testimony to the contrary, it is a just inference that a jury might properly have drawn, that the Worth Company was entitled to its commissions. East Motor Co. v. Apperson-Lee Co., 117 Va. 495, 85 S. E. 479. It follows from what has been said that the Times-Dispatch was within its rights in applying as a credit on the $1,200 item the pre-existing indebtedness of the Worth Company to the extent of $680, the amount of its share of the fund. In so doing it was not paying the agent's debt with the principal's goods, but lawfully was applying the agent's money to the payment of its debt. The transaction was in no way prejudicial to the rights of the principal. (119 Va. 123) HILLEARY v. HUBBELL. (Supreme Court of Appeals of Virginia. June 8, 1916.) 1. EVIDENCE 271(1)-HEARSAY-STATEMENT In a broker's action against another broker to recover a commission under a special contract whereby he would endeavor to sell to purchasers brought or sent by the defendant for a percentage of the commission, evidence that, after the commissioner of the revenue had advised him he received his commission, plaintiff reported that he was not chargeable with the tax unless the sale to the commissioner of the revenue and paid the tax thereon as a real estate agent, and that defendant did not do so, was inadmissible, extrajudicial assertions and self-serving declaraas falling within the hearsay rule excluding all tions. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1068, 1070; Dec. Dig. 271(1).] 2. APPEAL AND ERROR 1050(2)-BROKERS 85(1) ACTION FOR COMMISSION - EVIDENCE. In such case, evidence that defendant had not made a similar report to the commissioner of the revenue, the only purpose of which was to place the defendant before the jury in the light of a tax dodger notwithstanding defendant's explanation that he had no office in the county, was irrelevant and prejudicial. Error, Cent. Dig. § 4154; Dec. Dig. 3. APPEAL AND ERROR 1053(6)-HARMLESS It is furthermore urged that the title to the Pitts machine did not pass, because that specific machine was not sold to the TimesThe error in admitting evidence that defendDispatch, but only a machine of that class- ant had not reported the sale to the commission |