In September, 1917, the Western Union Telegraph Company delivered to Esteve Bros. & Co., at New Orleans, La., an unrepeated cable message from the latter's main office at Barcelona, Spain, directing a sale for future delivery of 2,000 bales of cotton. The message actually sent had directed the sale of 200 bales. The error in transmission resulted in a loss to Esteve Bros. & Co. of $31,095. To recover compensation for this loss they sued the Western Union in a state court of Louisiana. The case was removed to the federal District Court, and there was tried by jury upon these additional stipulated facts:
The message was sent over lines of the Spanish Government Telegraph from Barcelona to Paris and thence over lines of the French government to Havre. There it was delivered to the Western Union, transmitted by its cable to New York City, and thence over its land lines to New Orleans. The error in transmission occurred on these land lines. The charge of $6.60, paid at Barcelona for transmitting the message represented the sum of the local rates on the several connecting lines. The Western Union's share was $4.65, and of this $3.75 was apportioned to the cable system and 90 cents to the land lines. This Western Union rate was established by its tariff of telegraph and cable rates, in force since some time prior to June 18, 1910. Under the act of that date (chapter 309, 36 Stat. 554 [Comp. St. § 8563]), making telegraph and cable companies subject to the Act to Regulate Commerce, this tariff had been filed with the Interstate Commerce Commission in May, 1916, by its permission and pursuant to an appropriate resolution of the company. The tariff so filed embodied the long used classification of messages, rules and regulations, including the provision that the company 'shall not be liable for mistakes * * * in transmission * * * of any unrepeated message, beyond the amount of that portion of the tolls which shall accrue to it.' The plaintiffs did not in in fact assent to this limitation of liability. They did not, in sending the message at Barcelona, use a blank containing the provisions so limiting liability. They did not have actual knowledge of the resolution of the company or of the filing of the tariffs with the Interstate Commerce Commission.
The plaintiffs contended at the trial that in view of the above facts they were entitled to a verdict for the full amount of their loss. The company contended that, since the message had not been repeated, the verdict should be limited to $4.65, the amount received by it as tolls. A verdict was directed for $31,095, with interest; judgment thereon was affirmed by the United States Circuit Court of Appeals for the Fifth Circuit (268 Fed. 22), and a petition for writ of certiorari was granted (254 U.S. 624, 41 Sup. Ct. 13, 65 L. Ed. --). The sole question presented for our decision is the amount of damages recoverable.