Blamberg Bros. v. Western Union Telegraph Co.

Adkins, J., delivered the opinion of the Court. This is a suit by appellant against appellee for damages alleged to have been suffered by appellant because of the negligence and failure of appellee to deliver a cablegram from appellant, a dealer in-seed in Baltimore City, to Emile Labbe Leplatre, commonly known as “Labbe/’ of Artenay, Prance, in regard to clover seed. The cablegram was filed for transmission in Baltimore on Eebruary 20th, 1922. Ho claim for damages was made by ³³¹ appellant nnt-il May 18th, 1922, eighty-seven clays after the date of the cablegram.

One of the provisions of the contract under which the cablegram was sent was that the company would not be liable for damages in any case, unless the claim should be presented in writing within sixty days after the filing of the message with the company for transmission. That provision was approved by the Interstate Commerce Commission, and appears as one of its adopted rules, certified copies of which were filed in the case. Appellant contends: (a) That it made a claim on March 24th, 1922, in a telephone conversation with Victor J. Albert, manager in Baltimore of appellee, followed by a letter of the same date, on receipt on that day of a letter from “Labbe,” which was the first intimation it had that the cablegram had not been delivered, (b) That it should not be bound by the sixty days rule because it- did not certainly know that its cable had not been delivered until July 1st, 1922, when it received a letter of that date from the local manager of appellee; or whether appellee or the French government was responsible for the failure to deliver the message. T aking these propositions in order: (a) It is clearly apparent that the letter of March 24th, 1922, was not a “claim” against the company, and there is nothing in the testimony to- indicate that in the conversation which preceded the letter any claim was made.

The letter of March 24th, addressed to appellee and signed by appellant, is as follows: “As per telephone conversation with your office this morning, we would thank you to trace delivery of our cable of February 20th, to ‘Labbe, Artenay, France,’ advising us a.t the earliest possible moment when same was delivered and par-ty signing for delivery.” (b) It may be that, on receipt of appellee’s letter of July 1st, 1922, appellant thought it was better equipped to proceed with a suit; but it cannot be heard to say that it was not in a position to file a claim until then, because, as a matter of fact, it did file a claim on May 18th, 1922. ³³² There is no reason whatever, so far as we can see, why appellant could not have filed its claim any time after the ■receipt, on March 24th, of Labbe’s letter of March 7th. If it had not been informed before the expiration of the sixty days that the cable had not been delivered, it would have been in a better position to urge Western Union