Sec 790

It was stated at the beginning of this chapter, that by the English common law, a person cannot bring suit on a contract to which he is not a party. An exception to this rule is recognized in favor of children born of a marriage subject to a marriage settlement. The children born of such a marriage may sue under such a settlement; nor is it any defence that they were not in existence at the time of the settlement.4 And as a general rule, peculiar favor is extended by courts of equity to provisions made by parents for their children.5

Sec 791

Another supposed exception is recognition of the liability of telegraph companies to parties receiving messages erroneously addressed or erroneously transmitted. In England this liability is denied in cases where the telegraph company is not the agent of the receiver of the message.6 In this country there is a concurclaim is the non-delivery of the message. In such case, unless this delivery be made obligatory by statute, the better opinion is that the only party who can sue for redress is the sender.1

Exception to general rule as to provisions for children.

Exception as to receiver of telegrams.

1 Macdonald V. Ins. Co., L. E. 9 Q. B. 328.

2 Sanders V. Filley, 12 Pick. 554; Johnson V. Foster, 12 Met. 167; Flynn V. Ins. Co., 115 Mass. 449.

3 Heim V. Vogel, 69 Mo. 529; and cases cited supra, sec 786.

4 Gale V. Gale, L. R. 6 Ch. D. 144; Pollock, 3d ed. 216. But see Ross V. Milne, 12 Leigh, 204.

5 Pollock, 3d ed. 216; citing Cotton, L. J., 15 Ch. D. 242.

6 Dickson V. Tel. Co., L. R. 2 C. P. D. 62; L. R. 3 C. P. D. 1; S. P. Play-ford V. Tel. Co., L. R. 4 Q. B. 706. In Dickson V. Tel. Co. the plaintiffs, merchants of Valparaiso, received a message erroneously delivered to them by the company's agent, the message not having been intended for them, and not coming from the parties from whom it purported to come. It was held that the plaintiffs owed the defendant no duty arising from contract. "It is impossible to suppose," said Cotton, L. J., "that the company, in the ordinary course of their business, warrant that the message comes from a particular person, for they would thereby make a representation the truth of which in many cases they cannot ascertain." rence of opinion to the effect that a telegraph company is liable to the receiver of a message which it erroneously transmits.1 In some of these cases2 the liability is placed on the ground of agency. The company is supposed to say to the receiver, "Will you pay me for this message if correct?" or, "Will you rely on the correctness of this message, and so far give me your patronage?" and the answer is, "I will!" Now, however strong the argument for agency may be in cases in which the receiver pays for the message, it fails where there is no payment, and where the sole relationship consists in the company sending the message to the receiver. A more reliable basis for the suit is that which is supplied by an appeal to the responsibility of the company on the principle sic utere tun ut non alienum laedas. Electricity is as powerful an agent, in some aspects, as steam. If a railroad company is required to reimburse a party injured by its negligent abuse of steam power, it is proper that a telegraph company should be held liable to a party injured by its negligent use of electricity.3 If I am injured by the falling down of a building negligently erected on the land of A., it would be no defence to a suit brought by me against A. that the building was in the course of erection in pursuance of a contract between A. and B. If an apothecary negligently hands me poison, in consequence of which I am injured, it is no defence that this poison was made up for perfectly legitimate purposes, in pursuance of a contract between the apothecary and D. And if a telegraph company hands me a message by which I am injured, the fact that this is incidental to a contract between the company and the sender should constitute no defence. - Another state of facts, however, arises when the plaintiffs.

1 Elwood V. Tel. Co., 45 N. Y. 549; De Rutte V. Tel. Co., 1 Daly, 547; 30 How. Pr. 403; Rose V. Tel. Co., 3 Abb. Pr. (N. S.) 409; 34 How. Pr. 308; New York, etc. Tel. Co. V. Dryburg, 35 Penn. St. 303; Harris V. Tel. Co., 9 Phil. 88; West. Un. Tel. Co. V. Fenton, 52 Ind. 1; Aiken V. Tel. Co., 5 So. Car. 368; West. Un. Tel. V. Carey, 15 Mich. 525; Beaupre V. Tel. Co., 21.

Minn. 155; De La Grange V. Tel. Co., 25 La. An. 383; Bank of Cal. V. Tel. Co., 52 Cal. 280. See 2 Thorn. on Neg. 847-8; Ellis V. Tel. Co., 13 Allen, 226.

2 See New York Tel. Co. V. Dryburg, 35 Penn. St. 303; De La Grange V. Tel. Co., 25 La. An. 383.

3 See Wh. on Neg. sec 758; and see infra, sec 812.