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Where a message is received by a telegraph agent after hours, it has been held that he must make a reasonable effort to deliver it, and, if he cannot, he should send a service message notifying the sender of his inability to deliver the message. Griswold v. Western U. Teleg. Co. (1913) 163 N. C. 173, 79 S. E. 273.

And it has been held that, where a telegraph company undertook to deliver a message at a time other than its office hours, it thereby waived the benefit of such office hours; that the receipt of the message without objection was an agreement to deliver it with reasonable despatch; and that, as soon as it was discovered that the message could not be delivered as agreed upon, the sender should have been promptly notified. Carter V. Western U. Teleg. Co. (1906) 141 N. C. 374, 54 S. E. 274.

Likewise, where there was a special undertaking to put a message through the night it was sent, and the receiving office could not, with reasonable diligence, arrange for its delivery, it was held that the transmitting office should have been notified, so that the sender might have been informed and have made necessary arrangements to meet the difficulty arising from a failure to deliver the message that night, as contemplated. Bolton Western U. Teleg. Co. (1907) 76 S. C. 529, 57 S. E. 543.

V.

As to delay in transmission due to the fact that a message is received after the closing hour of the terminal office, see supra, subd. II.

b. Addressee outside free-delivery limits. In many places telegraph companies maintain what are called "free limits," within which messages are delivered free of charge; but messages addressed to persons residing outside of such free limits are not delivered unless an extra charge is paid or

guaranteed, to cover the cost of delivery. Where the sender of a message has no knowledge or information of the free-delivery limits established by a telegraph company, or that the sendee resides outside of them, it is generally held that, if the company wishes to collect or secure the extra cost for making the delivery, it must notify the sender of the necessity of paying an extra charge, and that, for a failure to give notice that a telegram will not be delivered because the sendee is outside the established limits, damages may be recovered.

Indiana.-Western U. Teleg. Co. v. Moore (1894) 12 Ind. App. 136, 5 Am. St. Rep. 515, 39 N. E. 874.

Maine. Sturtevant v. Western U. Teleg. Co. (1912) 109 Me. 479, 84 Atl. 998.

Missouri.-Brashears v. Western U. Teleg. Co. (1891) 45 Mo. App. 433.

North Carolina.-Bright v. Western U. Teleg. Co. (1903) 132 N. C. 317, 43 S. E. 841; Bryan v. Western U. Teleg. Co. (1903) 133 N. C. 603, 45 S. E. 938; Hood v. Western U. Teleg. Co. (1904) 135 N. C. 622, 47 S. E. 607.

South Carolina.-Campbell v. Western U. Teleg. Co. (1906) 74 S. C. 300, 54 S. E. 571; Lyles v. Western U. Teleg. Co. (1907) 77 S. C. 174, 12 L.R.A. (N.S.) 534, 57 S. E. 725; Campbell v. Western U. Teleg. Co. (1906) 74 S. C. 300, 54 S. E. 571; Martin v. Western U. Teleg. Co. (1907) 81 S. C. 432, 62 S. E. 833; Jones v. Western U. Teleg. Co. (1915) 101 S. C. 181, 85 S. E. 370, Ann. Cas. 1917C, 543.

Texas.-Anderson V. Western U. Teleg. Co. (1892) 84 Tex. 17, 19 S. W. 285; Western U. Teleg. Co. v. Harris (1912) 105 Tex. 320, 148 S. W. 284, affirming (1910) Tex. Civ. App. —, 132 S. W. 876; Western U. Teleg. Co. v. Sweetman (1898) 19 Tex. Civ. App. 435, 47 S. W. 676; Evans v. Western U. Teleg. Co. (1900) Tex. Civ. App.

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56 S. W. 609; Western U. Teleg. Co. v. Davis (1900) 24 Tex. Civ. App. 427, 59 S. W. 46; Western U. Teleg. Co. v. Kuykendall (1905) Tex. Civ. App. -, 86 S. W. 61; Western U. Teleg. Co. v. Ayres (1907) 47 Tex. Civ. App. 557, 105 S. W. 1165; Western U. Teleg. Co.

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Compare Whittemore v. Western U. Teleg. Co. (1895) 71 Fed. 651; Smith v. Western U. Teleg. Co. (1915) 168 N. C. 515, 84 S. E. 796.

Thus, in Anderson v. Western U. Teleg. Co. (1892) 84 Tex. 17, 19 S. W. 285, it was held that the sender of a message could not be bound by a regulation which was not brought to his knowledge; and that it was no excuse that the person to whom the message was sent resided outside of the free limits, especially where the company failed to notify the sender of the fact that the message had not been delivered and of the reason therefor, so that prompt delivery could have been secured.

And where it appeared that the plaintiff delivered a message to the defendant company to be transmitted to a person who resided outside the free limits, which was not delivered within a reasonable time, but was mailed to the sendee, who had instructed the defendant company to do so in case he could not be reached by telephone, it was held, in an action by the sender of the message to recover damages for the alleged negligence of the defendant company in not seasonably delivering the message, that the instruction given by the sendee to the defendant company did not modify the contract between the plaintiff and the defendant, and it was the duty of the defendant company, in case it did not intend promptly to deliver the message without further charge, to notify the sender of that fact, so that she might, if she desired, have it promptly fowarded to the sendee.

In Western U. Teleg. Co. v. Harris (1912) 105 Tex. 320, 148 S. W. 284, affirming (1910) Tex. Civ. App. 132 S. W. 876, the court said: "It is not reasonable to suppose the sender of a message is familiar with the limits of the free-delivery district prescribed by the telegraph company. The company forms the free-delivery

district, and, if it wishes to collect the extra fee, it is incumbent upon such company to ascertain from the sender the exact location of the sendee in the place where the message is to be transmitted. If that be a burden, it rests lighter upon the shoulder of the company than upon that of the sender. The district is of its creation and for its benefit, and we are not willing to say that it is incumbent upon the sender of a message to ascertain, at his risk, the limits of such freedelivery district and tender the extra compensation; but the company must determine that fact from the information in its possession, or from such information as may be given it by inquiry of the sender, or from other sources, and then make demand for the extra charge. If the addressee lives without the free-delivery limits, and the sender refuses to pay the extra charge or guarantee its payment, then the company would be justified in refusing to make delivery of the message."

So, in Lyles v. Western U. Teleg. Co. (1907) 77 S. C. 174, 12 L.R.A. (N.S.) 534, 57 S. E. 725, wherein it appeared that the operator agreed to notify the sender of the failure to deliver it was held that "when a telegraph company discovers that the person for whom the message is intended lives beyond the free-delivery limits, its duty is not at an end unless the sender, with notice of the claim for additional compensation, has failed, or refused on demand, to pay it." It was also held that payment for transmission and delivery of a message is a sufficient consideration to support a promise to notify the sender of the failure to deliver promptly.

Where it is customary for the receiving office to notify the sending office, that a special charge is necessary, and for the latter office to notify the sender, such custom has the force of a rule, and it is actionable negligence on the part of the company to fail both to deliver the message and promptly to notify the sender of its inability to do so without a guaranty of a further charge. Evans v. Western

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But it has been held that where the sender knows that the addressee resides outside the free-delivery limits, and makes no provision for special delivery, the company is not liable for failure to deliver, unless the requirements for prepayment are waived by the operator's undertaking to deliver the message at the risk of being paid by the addressee. Whittemore v. Western U. Teleg. Co. (Fed.) supra.

And where the sender is notified that the sendee resides outside the free-delivery limits, but refuses to pay or guarantee the extra charge, the telegraph company is absolved from liability. Smith v. Western U. Teleg. Co. (N. C.) supra.

In Alabama, the rule as to delivery outside of the free limits places on the sender of a message the burden of knowing such limits and of providing accordingly, and it is there held that when a message is handed in for transmission, the presumption is that the person to whom it is to be delivered resides within the limits of free delivery, or that the sender takes the risk of delivery unless he makes arrangements for delivery at a greater distance. Western U. Teleg. Co. v. Henderson (1889) 89 Ala. 510, 18 Am. St. Rep. 148, 7 So. 419. the same effect see Western U. Teleg. Co. v. Merrill (1905) 144 Ala. 618, 113 Am. St. Rep. 66, 39 So. 121. But compare Western U. Teleg. Co. v. Boteler (1913) 183 Ala. 457, 62 So. 821, wherein it appeared that the sendee of a message lived outside the free-delivery limits, and it was held that the telegraph company would be liable for a delay in sending a service message demanding special-delivery charges where it did not voluntarily deliver the message to the sendee.

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c. Company unable to locate addressee.

Where because of a faulty address, or for any other reason, the addressee of a telegram cannot be found, it is generally held that a duty devolves on the agent at the terminal office to send a service message to the initial operator, so that the sender may be notified

of the trouble and given an opportunity to furnish the correct address or other information which will aid in locating the addressee. Sherrill v. Western U. Teleg. Co. (1895) 117 N. C. 352, 23 S. E. 277, former appeal (1895) 116 N. C. 655, 21 S. E. 429; Hendricks v. Western U. Teleg. Co. (1900) 126 N. C. 304, 78 Am. St. Rep. 658, 35 S. E. 543; Hinson v. Postal Teleg. Cable Co. (1903) 132 N. C. 460, 43 S. E. 945; Cogdell v. Western U. Teleg. Co. (1904) 135 N. C. 431, 47 S. E. 490; Hall v. Western U. Teleg. Co. (1905) 139 N. C. 369, 52 S. E. 50; Woods v. Western U. Teleg. Co. (1908) 148 N. C. 1, 128 Am. St. Rep. 581, 61 S. E. 653; Miller v. Western U. Teleg. Co. (1914) 167 N. C. 315, 83 S. E. 482; Medlin v. Western U. Teleg. Co. (1915) 169 N. C. 495, 86 S. E. 366, 11 N. C. C. A. 802; Johnson v. Western U. Teleg. Co. (1916) 171 N. C. 130, 87 S. E. 993; Jones v. Western U. Teleg. Co. (1915) 101 S. C. 181, 85 S. E. 370, Ann. Cas. 1917C, 543; Western U. Teleg. Co. v. Davis (1899) - Tex. Civ. App. 51 S. W. 258; Western U. Teleg. Co. v. Erwin (1912) — Tex. Civ. App. —, 147 S. W. 607. And see the reported case (WESTERN U. TELEG. Co. v. BARBOUR, ante, 103). Compare Williams v. Western U. Teleg. Co. (1909) Ky. 119 S. W. 1186.

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Thus, in Johnson v. Western U. Teleg. Co. (1916) 171 N. C. 130, 87 S. E. 993, supra, the rule was stated as follows: "When a message is received at a terminal office to which it has been transmitted for delivery to the person addressed, it is the duty of the company to make diligent search to find him, and, if he cannot be found to wire back to the office from which the message came, for a better address."

The reason for the necessity of notifying the sender of the failure to find the addressee was, in Hendricks v. Western U. Teleg. Co. (1900) 126 N. C. 304, 78 Am. St. Rep. 658, 35 S. E. 543, stated to be as follows: "A better address might be given, mutual friends might be communicated with, or even a letter might reach the addressee. In any event the sender might be re

lieved from great anxiety, and would know what to expect. Moreover, it would tend to show diligence on the part of the company."

The fact that the name of the addressee is misspelled does not relieve the telegraph company of its duty to notify the sender of its inability to deliver the message. Woods v. Western U. Teleg. Co. (1908) 148 N. C. 1, 128 Am. St. Rep. 581, 61 S. E. 653.

In answer to a contention that, as the sender of a message lived 12 miles from the telegraph station, it would have been useless to send a service message for a better address, it was said in Johnson v. Western U. Teleg. Co. (1916) 171 N. C. 130, 87 S. E. 993:

"The defendant's agent had no right to assume this. The evidence is that Mount Holly is the nearest telegraph station to where the sender resided, and only 12 miles distant. It is highly probable he could have been reached by phone. It was the duty of the Smithfield operator, at least, to send the usual service message, and there is nothing in the facts of this case that relieved him of such duty."

But in Williams v. Western U. Teleg. Co. (1909) Ky. —, 119 S. W. 1186, it was held that a telegraph company was not guilty of negligence by reason of the failure of its receiving agent to send a service message, after he had failed to locate the addressee within an hour and a half. L. W. B.

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1. Equity will not cancel a usurious contract unless the borrower offers to pay the amount due with legal interest, although the statute makes it void and authorizes the borrower to recover any money paid on it. [See note on this question beginning on page 123.]

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APPEAL by complainant from a decree of the Superior Court for Provi

dence and Bristol Counties (Tanner, J.) dismissing a bill filed for the cancelation of an alleged usurious transaction. Reversed.

The facts are stated in the opinion of the court.

Mr. Clarence N. Woolley for appellant.

Mr. Frank L. Hanley for appellees.

Sweetland, Ch. J., delivered the opinion of the court:

This is a bill in equity praying that a certain note made by the complainant to the respondent Palmer for money loaned to be declared usurious and void and be surrendered to the complainant; that a certain mortgage deed of personal property given by the complainant to said Palmer as security for the payment of said note be canceled; and that the respondent Palmer be restrained from from alienating said mortgage and note, and from foreclosing said mortgage.

The complainant in his bill makes no offer to pay to the respondent Palmer the money loaned with legal interest. On demurrer, a justice of the superior court held that under the allegations of the bill the transaction was usurious, but dismissed the bill on the ground that payment, or a tender of payment, constituted a condition precedent to the granting of the equitable relief sought. The cause is before us upon the complainant's appeal from the decree of the superior court.

The provisions of the Rhode Island statute with reference to usury are drastic. Chapter 434, Public Laws 1909, amended by chapter 838, Public Laws 1912. The violation of the act is punishable as a misdemeanor, every contract made in violation of it is void, and the borrower may recover in an action at law, not only the interest, but any portion of the principal paid by him upon such usurious contract. The complainant's solicitor has presented to us a very comprehensive and able argument in support of his contention that equity should recognize the view of public policy emphatically expressed in the legislative act, and should cancel the usurious and void contract. This argument would have more persuasive force

tract-equity.

if the question were a new one. The
settled and nearly universal practice
of courts of equity Cancelation-of
is opposed to the usurious con-
complainant's con-
tention. The statutes of different
states have various provisions di-
rected towards the prevention of
the extortion and oppression of
usury. Whatever may be the meth-
od adopted by the legislature,
however, although the legislative
provision may go to the limit of

our statute and declare the contract
void and unenforceable, neverthe-
less courts of equity, in the absence
of statute specifically constraining
them to act differently, have insist-
ed upon the equitable principle that
he "who seeks equity must do equi-
ty," and have required the borrow-
er, before he can be given the relief
of cancelation of the contract, to
perform the moral obligation rest-
ing upon him, and pay or offer to
pay the principal of the loan with
legal interest.

The

The opinion of Mr. Justice Shiras in Missouri, K. & T. Trust Co. v. Krumseig, 172 U. S. 351, 43 L. ed. 474, 19 Sup. Ct. Rep. 179, upon which the complainant places much reliance, is based upon the construction given to a Minnesota usury statute by the supreme court of that state. Said statute provides that the courts may enjoin any proceeding upon an instrument given in violation of the statute, and order the same canceled and given up. supreme court of Minnesota found in other provisions of the statute the legislative intent that such injunction and order should be made, although the borrower did not offer to pay the debt with legal interest. Complainant's counsel finds some support for his argument in the opinion of the court in the early Massachusetts case of Hart v. Goldsmith, 1 Allen, 145, in which a borrower who brought a bill to redeem mortgaged premises was held to be entitled to the benefit of the statutory penalty for usury, in reduc

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