Durkee v. Vermont Central Railroad , 29 Vt. 127 ( 1856 )

The opinion of the court was delivered by

Redeield, Cs. J.

I. In regard to the proof offered to establish telegraphic communications, it seems to us that where such communications are relied upon to establish contracts, where their force and effect will depend upon the terms used, they must be proved in the same manner other writings, as letters and contracts, are. For a telegraphic communication is ordinarily in writing, in the vernacular, at both ends of the line, and must of necessity be so at the last end, unless the person to whom it is addressed is in the office at the time, which is sometimes the fact. In such case, if the communication were never reduced to writing, it could only be proved, like other matters resting in parol, by the recollection of witnesses in whose hearing it was repeated.

In regard to the particular end of the line where inquiry is first to be made for the original, it depends upon which party is responsible for the transmission across the line, or in other words, whose agent the telegraph is. The first communication, in a transaction, if it is all negotiated across the wires, will only be effective in the form in which it reaches its destination. In such case inquiry should first be made'for the very dispatch delivered. In default of that, its contents may be shown by the next best proof. If the course of business is, as in the cities, to preserve copies of all messages received in books kept for that purpose, a copy might readily be obtained which would ordinarily be regarded as better proof than the mere recollection of a witness. And according to the early English and the American practiced the party is bound to produce a copy of the original, (that beingj lost,) when in his power, and known a sufficient time before the trial to enable him to do so; 1 Greenleaf Ev., sec. 84, and note.

And perhaps if no copy of such message is preserved, but the original message ordered to be sent is preserved, that should be produced, although this were not strictly the original in the case, the letter delivered, which was the original, being lost.

But where the party to whom the communication is made is to take the risk of transmission, the message delivered to the operator is the original, and that is to be produced, or the nearest approach to it by way of copy or otherwise.

II. In "regard to the merits of the claim, more than one question is raised.

1. It is said there is a fatal variance between the declaration and the proof. But it seems to us the amended count must be regarded as sufficient. The only objection raised against its sufficiency is in describing the commission as being payable upon such amount of money as the plaintiff should negotiate the loan for, when the contract proved is for the negotiation of a loan for the full sum of one hundred thousand dollars. But even in that view the commission, as it seems to us, is well enough described, as upon the amount negotiated, or to be negotiated, or which should be negotiated. In either form of expression it is but another mode of expression for one hundred thousand dollars.

2. It is said the proof did not tend to show a loan of the full sum, as Durkee’s debt was to be accepted for a portion. But as this was to be cashed at the time of the negotiation by the plaintiff, it was substantially, so far as the defendants are concerned, a cash transaction. And as the defendants declined absolutely to go forward with the contract, and there is no pretence that the plaintiff expected the defendants to take any thing but money, it seems to us the plaintiff should not be deprived of reasonable compensation for his trouble on this ground.

3. But it is said it was not a loan in the sense of the authority given to Peck by Quincy. But it seems to us it was substantially such a transaction as Quincy probably contemplated in his letter to Peck of the 6th March, 1851. As he made no limit in regard to the discount, it is fair perhaps to conclude that he expected some discount. And as he left this altogether to Peck, the contract in that respect will bind the defendants.

And as Quincy offered to secure the loan by his own note, with the bonds of the defendants or the stock of the Vermont and Canada Eailroad as collaterals, or the notes of the company, with his own endorsement, it seems to us he must have expected very much such a loan as the plaintiff negotiated with Holbrook, calling it all money. Quincy’s chief objection to it, judging from the correspondence, seems to have been the noise and stir made.

4. It is said the fact that the discount was to come out of it, and that the full sum in money was not to be paid to the defendants will destroy the identity of the contract. But this, we think, will depend upon the course of doing business. And that whether the discount and commission should be deducted, or not, if done according to the usual course of negotiating similar transactions at the time and in the place where this was done, it will answer the contract.

5. It was said that taking all the testimony together it would rather seem that Holbrook was not ready to make any loan. But there was a conflict of testimony on this point, and the plaintiff might properly insist upon going to the jury in regard to it.

6. It seems that in certain kinds of brokerage in England, by commercial usage, the broker is not entitled to his commission if those who employ him decline to close the transaction after the broker has been at expense to prepare for the negotiation, and that in such cases the broker is entitled to no compensation. We suppose of course that a broker is not entitled to his full commissions, probably, unless he completes the negotiation. And in some business, in some countries, there may be a custom or usage that unless they earn their commission by completing the negotiation they are not to be paid anything. This is only giving those who deal with brokers the right to recede from the negotiation until the last moment. If such a right is reserved, either expressly or by the known usage of a particular business, which is in effect the same thing, it is all well. There is no injustice in such a rule as applicable to contracts. But we are not aware of any such usage in regard to brokerage in this country. If any such exists, the party might prove it probably before the jury, and thus obtain the benefit of it. The court could not declare it as a rule of law unless it became notorious and universal.

7. It does not appear to us very obvious that the security which Peck agreed to give the plaintiff differs substantially from that named in Quincy's letter to him. In the one it is said to be at “ a fair rate,” and in the other, to the plaintiff’s satisfaction, which, if the plaintiff is to be regarded as a faip man, must import much the same thing.

8. It is said that it does not appear from any of the evidence, giving it the most favorable construction for the plaintiff, that he was ever fully ready, or' that any one with whom he had negotiated was fully ready to have transacted a loan of one hundred thousand dollars with the defendants upon the terms specified. But if the plaintiff proceeded with reasonable dispatch in the matter and the negotiation was revoked by the defendants, and they peremptorily refused to go forward and complete the contract, it would certainly not be necessary for the plaintiff to show full readiness on his part, unless that were important to the identity of his claim as described in the declaration. And we do not well perceive how it could be made so, as if the plaintiff averred full readiness on his part, and that the defendant refused to complete the contract, and proved part readiness and that his authority was countermanded, it would not show a case of variance, but only of an averment beyond the proof, but in the same direction. One may always, in such case, recover to the extent of the proof. If the party do all in his power to be ready until his authority is revoked, he may well say he was ready, and the other party refused to accept performance.

Judgment reversed and case remanded.