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v. McMillan (1895) Tex. Civ. App. guaranteed, to cover the cost of

30 S. W. 298. And see Western U. delivery. Where the sender of a Teleg. Co. v. May (1894) 8 Tex. Civ. message has no knowledge or inforApp. 176, 27 S. W. 760.

mation of the free-delivery limits

established by a telegraph company, III. Delay in delivery.

or that the sendee resides utside of a. Generally.

them, it is generally held that, if the Where a message is received by a company wishes to collect or secure telegraph agent after hours, it has the extra cost for making the delivery, been held that he must make a reason

it must notify the sender of the necesable effort to deliver it, and, if he sity of paying an extra charge, and cannot, he should send service that, for a failure to give notice that message notifying the sender of his a telegram will not be delivered beinability to deliver the message.

the sendee is outside the Griswold v. Western U. Teleg. Co.

established limits, damages may be (1913) 163 N. C. 173, 79 S. E. 273.

recovered. And it has been held that, where a

Indiana.-Western U. Teleg. Co. v. telegraph company undertook to de Moore (1894) 12 Ind. App. 136, 5 Am. liver a message at a time other than St. Rep. 515, 39 N. E. 874. its office hours, it thereby waived the

Maine. -Sturtevant v. Western U. benefit of such office hours; that the Teleg. Co. (1912) 109 Me. 479, 84 Atl. receipt of the message without objec

998. tion was an agreement to deliver it Missouri.—Brashears v. Western U. with reasonable despatch; and that, as Teleg. Co. (1891) 45 Mo. App. 433. soon as it was discovered that the North Carolina.-Bright v. Western message could not be delivered as U. Teleg. Co. (1903) 132 N. C. 317, agreed upon, the sender should have 43 S. E. 841; Bryan v. Western U. been promptly notified. Carter

Teleg. Co. (1903) 133 N. C. 603, 45 Western U. Teleg. Co. (1906) 141 N. C. S. E. 938; Hood v. Western U. Teleg. 374, 54 S. E. 274.

Co. (1904) 135 N. C. 622, 47 S. E. 607. Likewise, where there was a special South Carolina.-Campbell v. Westundertaking to put a message through ern U. Teleg. Co. (1906) 74 S. C. 300, the night it was sent, and the receiv 54 S. E. 571; Lyles v. Western U. Teing office could not, with reasonable leg. Co. (1907) 77 S. C. 174, 12 L.R.A. diligence, arrange for its delivery, it

(N.S.) 534, 57 S. E. 725; Campbell v. was held that the transmitting office Western U. Teleg. Co. (1906) 74 S. C. should have been notified, so that the

300, 54 S. E. 571; Martin v. Western sender might have been informed and U. Teleg. Co. (1907) 81 S. C. 432, 62 have made necessary arrangements to S. E. 833; Jones v. Western U. Teleg. meet the difficulty arising from a Co. (1915) 101 S. C. 181, 85 S. E. 370, failure to deliver the message that

Ann. Cas. 1917C, 543. night, as contemplated. Bolton

Texas.-Anderson V. Western U. Western U. Teleg. Co. (1907) 76 S. C. Teleg. Co. (1892) 84 Tex. 17, 19 S. W. 529, 57 S. E. 543.

285; Western U. Teleg. Co. v. Harris As to delay in transmission due to (1912) 105 Tex. 320, 148 S. W. 284, the fact that a message is received affirming (1910) — Tex. Civ. App. -, after the closing hour of the terminal 132 S. W. 876; Western U. Teleg. Co. office, see supra, subd. II.

v. Sweetman (1898) 19 Tex. Civ. App.

435, 47 S. W. 676; Evans v. Western 6. Addressee outside free-delivery limits. U. Teleg. Co. (1900) Tex. Civ. App.

In many places telegraph companies 56 S. W. 609; Western U. Teleg. Co. maintain what are called "free limits," v. Davis (1900) 24 Tex. Civ. App. 427, within which messages are delivered 59 S. W. 46; Western U. Teleg. Co. v. free of charge; but messages ad Kuykendall (1905) Tex. Civ. App. dressed to persons residing outside of 86 S. W. 61; Western U. Teleg. Co. such free limits are not delivered un v. Ayres (1907) 47 Tex. Civ. App. 557, less an extra charge is paid or 105 S. W. 1165; Western U. Teleg. Co.

v. Vance (1912) Tex. Civ. App. district, and, if it wishes to collect the 151 S. W. 904; Western U. Teleg. Co. extra fee, it is incumbent upon such v. Wilson (1913) Tex. Civ. App. —,

company to ascertain from the sender 152 S. W. 1169; Western U. Teleg. Co. the exact location of the sendee in the v. White (1913) Tex. Civ. App. place where the message is to be trans162 S. W. 905.

mitted. If that be a burden, it rests Compare Whittemore v. Western U. lighter upon the shoulder of the comTeleg. Co. (1895) 71 Fed. 651; Smith pany than upon that of the sender. V. Western U. Teleg. Co. (1915) 168 The district is of its creation and for N. C. 515, 84 S. E. 796.

its benefit, and we are not willing to Thus, in Anderson v. Western U. say that it is incumbent upon the Teleg. Co. (1892) 84 Tex. 17, 19 S. W. sender of a message to ascertain, at 285, it was held that the sender of a his risk, the limits of such freemessage could not be bound by a regu delivery district and tender the extra lation which was not brought to his compensation; but the company must knowledge; and that it was no excuse determine that fact from the informathat the person to whom the message tion in its possession, or from such was sent resided outside of the free information as may be given it by inlimits, especially where the company quiry of the sender, or from other failed to notify the sender of the fact sources, and then make demand for that the message had not been de the extra charge. If the addressee livered and of the reason therefor, so lives without the free-delivery limits, that prompt delivery could have been and the sender refuses to pay the secured.

extra charge or guarantee its payAnd where it appeared that the ment, then the company would be plaintiff delivered a message to the justified in refusing to make delivery defendant company to be transmitted of the message." to a person who resided outside the So, in Lyles v. Western U. Teleg. Co. free limits, which was not delivered (1907) 77 S. C. 174, 12 L.R.A. (N.S.) within a reasonable time, but was 534, 57 S. E. 725, wherein it appeared mailed to the sendee, who had in that the operator agreed to notify the structed the defendant company to do sender of the failure to deliver it was so in case he could not be reached by held that “when a telegraph company telephone, it was held, in an action by discovers that the person for whom the the sender of the message to recover message is intended lives beyond the damages for the alleged negligence of free-delivery limits, its duty is not at the defendant company in not season an end unless the sender, with notice ably delivering the message, that the of the claim for additional compensainstruction given by the sendee to the

tion, has failed, or refused on demand, defendant company did not modify to pay it." It was also held that paythe contract between the plaintiff and ment for transmission and delivery of the defendant, and it was the duty of

a message is a sufficient consideration the defendant company, in case it did to support a promise to notify the not intend promptly to deliver the sender of the failure to deliver promptmessage without further charge, to

ly. notify the sender of that fact, so that

Where it is customary for the reshe might, if she desired, have it

ceiving office to notify the sending promptly fowarded to the sendee.

office, that a special charge is necesIn Western U. Teleg. Co. v. Harris

sary, and for the latter office to notify (1912) 105 Tex. 320, 148 S. W. 284,

the sender, such custom has the force affirming (1910) - Tex. Civ. App. —,

of a rule, and it is actionable negli132 S. W. 876, the court said: “It is not reasonable to suppose the sender

gence on the part of the company to

fail both to deliver the message and of a message is familiar with the limits of the free-delivery district promptly to notify the sender of its prescribed by the telegraph company. inability to do so without a guaranty The company forms the free-delivery of a further charge. Evans v. Western

U. Teleg. Co. (1900) - Tex. Civ. App. of the trouble and given an opportunity 56 S. W. 609.

to furnish the correct address or But it has been held that where the other information which will aid in sender knows that the addressee locating the addressee. Sherrill v. resides outside the free-delivery limits, Western U. Teleg. Co. (1895) 117 N. C. and makes no provision for special 352, 23 S. E. 277, former appeal (1895) delivery, the company is not liable for 116 N. C. 655, 21 S. E. 429; Hendricks failure to deliver, unless the require v. Western U. Teleg. Co. (1900) 126 ments for prepayment are waived by N. C. 304, 78 Am. St. Rep. 658, 35 S. E. the operator's undertaking to deliver 543; Hinson v. Postal Teleg. Cable Co. the message at the risk of being paid (1903) 132 N. C. 460, 43 S. E. 945; by the addressee. Whittemore v. West Cogdell v. Western U. Teleg. Co. ern U. Teleg. Co. (Fed.) supra.

(1904) 135 N. C. 431, 47 S. E. 490; And where the sender is notified Hall y. Western U. Teleg. Co. (1905) that the sendee resides outside the 139 N. C. 369, 52 S. E. 50; Woods v. free-delivery limits, but refuses to pay Western U. Teleg. Co. (1908) 148 N. C. or guarantee the extra charge, the 1, 128 Am. St. Rep. 581, 61 S. E. 653; telegraph company is absolved from Miller v. Western U. Teleg. Co. (1914) liability. Smith v. Western U. Teleg, 167 N. C. 315, 83 S. E. 482; Medlin v. Co. (N. C.) supra.

Western U. Teleg. Co. (1915) 169 N. C. In Alabama, the rule as to delivery 495, 86 S. E. 366, 11 N. C. C. A. 802; outside of the free limits places on the Johnson v. Western U. Teleg. Co. sender of a message the burden of (1916) 171 N. C. 130, 87 S. E. 993; knowing such limits and of providing Jones v. Western U. Teleg. Co. (1915) accordingly, and it is there held that 101 S. C. 181, 85 S. E. 370, Ann. Cas. when a message is handed in for trans 1917C, 543; Western U. Teleg. Co. v. mission, the presumption is that the Davis (1899) Tex. Civ. App. 51 person to whom it is to be delivered S. W. 258; Western U. Teleg. Co. v. resides within the limits of free de Erwin (1912) - Tex. Civ. App. —, 147 livery, or that the sender takes the S. W. 607. And see the reported case risk of delivery unless he makes ar (WESTERN U. TELEG. Co. v. BARBOUR, rangements for delivery at a greater

ante, 103). Compare Williams distance. Western U. Teleg. Co. v. Western U. Teleg. Co. (1909) Ky. Henderson (1889) 89 Ala. 510, 18 119 S. W. 1186. Am. St. Rep. 148, 7 So. 419. To Thus, in Johnson v. Western U. the same effect see Western U. Teleg. Teleg. Co. (1916) 171 N. C. 130, 87 Co. v. Merrill (1905) 144 Ala. 618, S. E. 993, supra, the rule was stated 113 Am. St. Rep. 66, 39 So. 121. follows: “When a message is But compare Western U. Teleg. Co. v.

received at a terminal office to which Boteler (1913) 183 Ala. 457, 62 So. 821, it has been transmitted for delivery to wherein it appeared that the sendee of

the person addressed, it is the duty of a message lived outside the free-de

the company to make diligent search livery limits, and it was held that the

to find him, and, if he cannot be found telegraph company would be liable for

to wire back to the office from which a delay in sending a service message the message came, for a better addemanding special-delivery charges dress.” where it did not voluntarily deliver The reason for the necessity of the message to the sendee.

notifying the sender of the failure to c. Company unable to locate addressee.

find the addressee was, in Hendricks Where because of a faulty address,

v. Western U. Teleg. Co. (1900) 126 or for any other reason, the addressee

N. C. 304, 78 Am. St. Rep. 658, 35 S. E. of a telegram cannot be found, it is

543, stated to be as follows: “A better generally held that a duty devolves on address might be given, mutual friends the agent at the terminal office to send might be communicated with, or even a service message to the initial opera a letter might reach the addressee. In tor, so that the sender may be notified any event the sender might be re

as

lieved from great anxiety, and would “The defendant's agent had no right to know what to expect. Moreover, it assume this. The evidence is that would tend to show diligence on the Mount Holly is the nearest telegraph part of the company."

station to where the sender resided, The fact that the name of the and only 12 miles distant. It is highly addressee is misspelled does not re probable he could have been reached lieve the telegraph company of its by phone. It was the duty of the duty to notify the sender of its in Smithfield operator, at least, to send ability to deliver the message. Woods the usual service message, and there v. Western U. Teleg. Co. (1908) 148 is nothing in the facts of this case N. C. 1, 128 Am. St. Rep. 581, 61 S. E. that relieved him of such duty." 653.

But in Williams v. Western U. Teleg. In answer to a contention that, as Co. (1909) Ky. —, 119 S. W. 1186, the sender of a message lived 12 miles it was held that a telegraph company from the telegraph station, it would was not guilty of negligence by reason have been useless to send a service of the failure of its receiving agent message for a better address, it was to send a service message, after he had said in Johnson v. Western U. Teleg. failed to locate the addressee within Co. (1916) 171 N. C. 130, 87 S. E. 993: an hour and a half.

L. W. B.

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Cancelation of usurious contract - equity.

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.] Mortgage usurious enforcement a usurious mortgage for default in inin equity.

terest payments, the borrower will, in 2. Equity will treat a mortgage void equity, be allowed credit at the legal for usury as a valid security for the

rate for the payments which he has amount that it regards as justly due made. from the borrower to the lender. Interest - rate enforceable by equity Application of payments usurious in absence of express stipulation.

interest legal interest in ad3. The rate of interest fixed by law

vance. in the absence of express stipulation

5. Equity may, at the instance of will be regarded by equity as the

the maker of a usurious mortgage amount which one seeking its aid against a usurious contract should

which contains a provision for sale in pay as a condition to relief.

case of default without notice to him, [See 27 R. C. L. 264.]

apply the usurious payments in satisMortgage usury

credit for pay

faction of legal interest in advance, ments made.

so as to avoid a default and threatened 4. In a suit to prevent a sale under sale.

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

Cancelation-of

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 appel- if the question were a new one. The lant.

settled and nearly universal practice Mr. Frank L. Hanley for appellees. of courts of equity Sweetland, Ch. J., delivered the

is opposed to the usurious con

tract-equity. opinion of the court:

complainant's conThis is a bill in equity praying tention. The statutes of different

states have various provisions dithat a certain note made by the com

rected towards the prevention of plainant to the respondent Palmer

the extortion and oppression of for money loaned to be declared usurious and void and be surren

usury. Whatever may be the meth

od adopted by the legislature, dered to the complainant; that a

however, although the legislative certain mortgage deed of personal provision may go to the limit of

our statute and declare the contract to said Palmer as security for the

void and unenforceable, neverthepayment of said note be canceled; less courts of equity, in the absence and that the respondent Palmer be restrained from alienating said

of statute specifically constraining

them to act differently, have insistmortgage and note, and from fore

ed upon the equitable principle that closing said mortgage.

he “who seeks equity must do equiThe complainant in his bill makes ty,” and have required the borrowno offer to pay to the respondent

er, before he can be given the relief Palmer the money loaned with legal of cancelation of the contract, to interest. On demurrer, a justice of perform the moral obligation restthe superior court held that under ing upon him, and pay or offer to the allegations of the bill the trans

pay the principal of the loan with action was usurious, but dismissed legal interest. the bill on the ground that payment, The opinion of Mr. Justice Shiras or a tender of payment, constituted in Missouri, K. & T. Trust Co. v. a condition precedent to the grant Krumseig, 172 U. S. 351, 43 L. ed. ing of the equitable relief sought. 474, 19 Sup. Ct. Rep. 179, upon The cause is before us upon the com which the complainant places much plainant's appeal from the decree of reliance, is based upon the constructhe superior court.

tion given to a Minnesota usury The provisions of the Rhode Is- statute by the supreme court of that land statute with reference to usury state. Said statute provides that the are drastic. Chapter 434, Public courts may enjoin any proceeding Laws 1909, amended by chapter 838, upon an instrument given in violaPublic Laws 1912. The violation of tion of the statute, and order the the act is punishable as a misde same canceled and given up. The meanor, every contract made in supreme court of Minnesota found violation of it is void, and the bor in other provisions of the statute the rower may recover in an action at legislative intent that such injunclaw, not only the interest, but any tion and order should be made, alportion of the principal paid by him though the borrower did not offer upon such usurious contract. The to pay the debt with legal interest. complainant's solicitor has present- Complainant's counsel finds some ed to us a very comprehensive and support for his argument in the able argument in support of his con opinion of the court in the early tention that equity should recognize Massachusetts case of Hart v. Goldthe view of public policy emphatical- smith, 1 Allen, 145, in which a borly expressed in the legislative act, rower who brought a bill to redeem and should cancel the usurious and mortgaged premises was held to be void contract. This argument entitled to the benefit of the statwould have more persuasive force utory penalty for usury, in reduc

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