Western Union Telegraph Co. v. Meyer

MANNING, J. The judge of the City Court is authorized to decide causes upon the evidence as well as the law, unless a trial by jury be demanded by one or the other of the parties. This cause was tried by the judge alone ; and a bill of exceptions in the record sets forth for our consideration all the evidence that was submitted to him. “All actions before justices, founded on any contract, express or implied, must be brought in the name of the party really interested therein whether he have the legal title or, not. — Code of 1876, § 3603 (3204). “ The declaration or statement in a case of appeal from a justice of the peace, is not subject to the technical rules of pleading. If it shows in general terms a debt due, or contract to be performed and a breach, it is sufficient.” — 1 Brick. Dig. 114, § 77; Hanks v. Hinson, 4 Port. 509; Spann v. Boyd, 2 Stewart, 480; Morrison v. Morrison, 4 Stew. 444. Such cases are to be tried on appeal “ according to equity and justice.” — Code, § 3121 (2721). Guided by these rules, we think the amended count, third in the complaint, was sufficient, and that however defective the first and second counts may have been, yet since a trial was had upon the complaint as amended and upon evidence which is all set out in the record,, the overruling of the demurrers was not an error that should work a reversal of the judgment. In regard to the merits of the case: The contract of the company was with plaintiff to pay forty dollars for him at Cincinnati, to “ Max Reis,” supposed by plaintiff to be his nephew. The money was not paid to the nephew, but to one whose name was unknown to the company. He was the person, though, who sent the dispatch to Meyer, — and was doubtless an impostor. The company and Meyer, were both deceived. Which must bear the loss? We find no decision in such a case. The argument for defendant is: The company was not in fault for sending at the instance of one who seemed to be [162] among strangers, and represented himself to be unfortunate, a message for pecuniary relief to a person supposed to be his friend. It was the duty of this person to ascertain for himself that the dispatch was not spurious. When he sent the money, the company was entitled to consider it as intended for him who sent the dispatch. To require him before receiving it, to prove his identity or name, might deprive an unfortunate person thus detained in a place where he was not known, of needed aid from distant friends; and the company would by its refusal, subject itself to the expense and annoyance of a suit which it would probably be unable to defend. On the other hand, it may be said : The receiver of the dispatch can not possibly knoAV who sent it. In the absence of notice from the company to the contrary, he might justly presume that the sender of the dispatch had been vouched for to the agents of the company, by some one they knew, who was acquainted with him. It being directed that the money should be paid to a person of the name of Max Reis, it was the company’s duty not to pay it to any one else. If it lacked proof concerning his identity, having control of the telegraph, it could easily through its manager at Selma have obtained from plaintiff, information of particulars, that would enable its agents, by interrogation of the sender of the message, to ascertain whether he was an impostor or not. Questions to attain that end, might easily be framed. As no inquiries on the subject were made, plaintiff might well suppose that the company did not desire more information than it had. By engaging in the business of transferring money by telegraph, between persons at a distance from each ■other, for which it charged large commissions, it took upon itself the responsibility of doing the service correctly, and like a banker who by mistake, pays a draft to some one who falsely personates the payee, or a carrier for hire, who delivers goods to one not the consignee, must make good the amount so lost. And if the company is not held to the duty of taking pains to ascertain the identity of the person to whom money transferred by telegraphic orders is to be paid, nothing would be easier than to use the telegraph as an instrument for committing frauds. My brothers think that where there is nothing to create suspicion in the minds of the company’s agents, it is for the party on whom the demand is made, to ascertain for himself whether he who makes it, is the person he professes to be, and that the company has no right to refuse payment of the [163] money to him in reply to whose message, the order to pay it is sent. I was strongly inclined to the other conclusion. But the case is a new one, and I defer to their opinion. The other questions made will probably not arise again. Let the judgment of the City Court be reversed, and the cause be remanded.