less things. If an optionee should be required to elect and give notice after the optionor had breached the contract, and put it out of his power to perform, would not this be to require a vain and useless act?

The author seems to rely mainly for the doctrine objected to on the Wisconsin case of Sixta v. Ontonagon Valley Land Company,18 in which case the defendant landowner gave to the plaintiff an agency to sell certain lands on a specified commission, and also granted to him an option to purchase, providing for specified credits of commission on the option price, in the event of an election to purchase. Before the expiration of the option to purchase, the landowner breached the option agreement by selling the land to third parties. Plaintiff sued for damages arising from the breach, and the court held he was entitled to recover as damages (1) the value to him of the option contract, and (2) any money he had paid on the option,19 the court saying the question was, "what does the evidence show the contract was worth to the plaintiff?"

That under such circumstances an optionee would be able to recover what he had paid on the option is quite clear, and possibly this could be done without an election, under such circumstances; but the question, "what the contract was worth" to the optionee, is one beset with many difficulties in the determination. By what known rule of law can the damages be measured? Clearly "the measure of damages is not the difference between the contract price and the market value of the land,—the rule obtaining where the optionee has elected,but the damages recoverable are limited to those resulting from the breach of the option contract itself."20 Those damages must be actual and consequential damages, and

(18) 157 Wis. 293, 147 N. W. 1042.

(19) James on Option Contracts, § 1104, pp. 505, 506.

(20) Ibid; citing Sixta v. Ontonagon Valley Land Co., 157 Wis. 293, 147 N. W. 1042; Boyd v. DeLancy, 17 App. Div. (N. Y.) 567 45 N. Y. Supp. 693; Bender v. Schatzkin, 96 N. Y. 203.

not mere imaginative or speculative or remote or contingent damages.21

What damages can an unaccepting optionee suffer which come within the rules of law awarding compensation? Mr. James says,22 and we think rightly, that "the measure of damages is not the difference between the contract price and the market value of the land,' "23 which is the rule where an option has been exercised or a contract of sale been entered into and breached by the optionor or vendor. What, then, are the damages to the optionee under such circumstances, and what the measure of the damages? Mr. James gives a Georgia case which seems to support his assertion in the text to the effect that the measure of damages "may be the excess of the market value of the land over the option price," in which case the complaint for breach of the option contract alleged the damages sustained as the difference be

tween the market value of the land and the option price, which complaint was sustained as against a general demurrer.25 Does not this Georgia case offend against the fundamental rules of law governing the awarding of compensatory damages for the breach of an option contract? Is not this one of those cases in which "the failure to distin

guish between the option and the contract concluded by the exercise of the option "lies the root of the difficulty, as pointed out in a note in 6 L. R. A. (N. S.) 403?

It would seem, on principal, that an optionee who does not elect, cannot recover damages on breach of the option contract before the expiration of the time limited, for the reason that the optionee has acquired no interest in or right to the land until he elects; has simply a right to a choice or privilege and preference to enter

(21) Couch v. Kansas City Southern R. Co., 252 Mo. 158 S. W. 347; Central Coal & Coke Co. v. Hartman, 49 C. C. A. 244, 111 Fed. 96.

(22) Law of Option Contracts, § 1104, p. 206. (23) Citing same as in footnote 20. (24) James on Option Contracts, § 1104, pp. 206-7.

(25) Pearson v. Horne, 139 Ga. 453, 77 S. E. 387.

into a contract of sale and purchase, and to avail himself of that privilege, under any circumstances, he must by some overt act or declaration indicate his election and acceptance of the privilege granted under the option; otherwise there is no mutuality between the parties, no obligation on the part of the optionor, and for these reasons. there can be no damages,—that is, any damages cognizable in a court of law-to the optionee.

It seems that the author goes to the limit of any possible damages that can be claimed or recovered under such a state of circumstances-if any damages can be recovered at all--when he says, "or, depending on the facts, the difference between the option price and the price at which the optionee has contracted to resell the optioned property," citing cases27 in support of the doctrine thus laid down as to the measure of the damages recoverable under such circumstances. But this introduces a new element-resale at a profit-into the quandary.

Among the cases cited is that of Roper v. Milbourn,28 which is thought not to be exactly on all-fours, although unmistakably holding that an option to purchase land is "property" which may be assigned—and if "property" that may be assigned, it is property that may be "damaged" may it not, and that damage estimated according to the established rules of law for awarding compensatory damages for breach of contracts? -in that (1) the action was not against a breaching optionor, but against a breaching purchaser who refused to perform on the ground that the vendor was merely an optionor, and (2) there had been an acceptance of the option by the plaintiff, and money had been paid by him under the option and in accordance with the terms thereof, thus bringing the case clearly within

(26) James on Option Contracts, § 1104, p. 207.

(27) Boyden v. Hill, 198 Mass. 477, 85 N. E. 413; Roper v. Milbourn, 93 Neb. 809, Ann. Cas. 1914B, 1225, 142 N. W. 792; Naylor v. Parker (Tex. Civ. App.) 198 S. W. 93.

(28) 93 Neb. 809, Ann. Cas. 1914B, 1225, 142 N. W. 792.

CARLAND, Circuit Judge. Gardner, hereinafter called the plaintiff, sued the Western Union Telegraph Company, hereinafter called the Company, for the delay in delivering a message to him which had been sent by Walter B. Scoville from Syracuse, Kan., to Quinlan, Okla., September 20, 1911. At the close of all the evidence taken at the trial of the action directed a verdict against the plaintiff, and he brings the case here assigning this ruling of the court as error.

The undisputed facts shown at the trial are as follows:

On the date of the message hereinafter set forth, the plaintiff was and had been a broom corn buyer at Quinlan, Okla., for about ten years. He had an understanding with the Scoville Bros. that they would pay him $5 per ton commission on all broom corn purchased by him at the market price upon their request. On September 20, 1911, Scoville sent the following night letter:

"Send the following night letter subject to the terms on back hereof, which are hereby agreed to: 60 Paid.

"Syracuse, Ks., Sept. 20, 1911.

"To John Gardner, Quinland, Okla.:

"Hope you have secured choice crops amounting to five cars or more we need it so do not

give it up even though you have to pay higher than we thought we must have it in fact to show our competitors a merry chase. So please secure all you can that is pea green. Hope you are feeling better.

"Walter B. Scoville."

The terms on the back of said message, which are referred to above and which are material in the consideration of this case, were as follows:

"Night Letter.

"All night letter messages taken by this company are subject to the following terms which are hereby agreed to:

"The Western Union Telegraph Company will receive not later than midnight NIGHT LETTERS, to be transmitted only for delivery on the morning of the next ensuing business day, at rates still lower than its standard night message rates, as follows: The standard day rate for ten words shall be charged for the transmission of fifty words or less, and one-fifth of such standard day rate for ten words shall be charged for each additional ten words or less.

"To guard against mistakes or delays, the sender of a message should order it REPEATED; that is, telegraphed back to the originating office for comparison. For this, onehalf the unrepeated message rate is charged in addition. Unless otherwise indicated on its face, THIS IS AN UNREPEATED MESSAGE AND PAID FOR AS SUCH, in consideration whereof it is agreed between the sender of the message and this company as follows:

"6. The Company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the Company for transmission."

The night letter was received at Quinlan, Okla., at 11:15 p. m., on the day of its date, but was not delivered to the plaintiff until September 25, 1911, at 10 o'clock a. m. The evidence showed that on account of the delay in the delivery of the message the plaintiff suffered material damage in the purchase of broom corn at a certain price and subsequent decrease in the market value thereof. No claim for damages was presented to the Company by the plaintiff until on or about October 22, 1912. It was stipulated at the trial that A. R. Lingafelt, district commercial superintendent of the Company for the states of Oklahoma and Arkansas, would testify, if present:

"That he has knowledge and information concerning that department of defendant company which has to do with the filing of its rates, rules, tariffs and regulations and information with the Interstate Commerce Commission, as provided by law, and that such tariffs, rates, rules and regulations as are contained in the general tariff book for the year commencing July, 1911 (a printed copy of which will be offered in evidence in above case and more particuarly identified), together with the regular printed sending blanks, generally and uniformly used by said company in its business, constitute the terms and conditions upon which

the defendant company is doing business as a carrier of messages, and that said rates, tariffs, rules and regulations of defendant company, as published in said tariff book, together with said blank forms, were within a reasonable time after July, 1911, and now are, offered for filing with the Interstate Commerce Commission, and are established and published annually with the knowledge and acquiescence of said Interstate Commerce Commission."

(1) In order to sustain the ruling of the trial court we must decide that the regulation in regard to the presentation of claims for damages within 60 days is valid as against the plaintiff. There is no indication on the face of the message that it was not an unrepeated message and paid for as such; hence, under the terms of the contract between Scoville and the Company the message must be considered as an unrepeated night letter for which the standard rate for unrepeated night letters was paid. In consideration of this rate Scoville agreed:

"That the company should not be liable for damages or statutory penalties in any case where the claim was not presented in writing within sixty days after the message was filed with the Company for transmission."

We accept the contention of counsel that this action is not upon the contract between Scoville and the Company strictly speaking, but for damages arising from a failure on the part of the Company to promptly perform a duty which under the law it owed the plaintiff. In other words, it is an action in tort. Assuming for the present that the regulation was valid as between Scoville and the Company the question then presents itself as to whether it is binding on the plaintiff notwithstanding the fact that this action is in tort and not on the contract.

There is not entire harmony among the au thorities upon this question, but upon principle and sound reason we think the plaintiff is bound by the regulation in relation to the presentation of claims for damages. Let us analyze plaintiff's case. He says that the Company was negligent in failing to deliver the message promptly. Negligence arises from a violation of duty owing by one person to another. If there is no duty there is no negligence. Without the contract between Scoville and the Company, the latter owed the plaintiff no duty, and hence there could be no negligence in the absence of the contract. So it plainly appears that plaintiff would have no cause of action except for the contract because the duty of the Company arose from the contract. May the plaintiff charge the Com

pany with the duty arising from the contract, and at the same time repudiate one of the conditions upon which the duty was assumed? We think not. The following cases support this view: Broom v. Western Union Telegraph Co., 71 S. C. 506, 51 S. E. 259, 4 Ann. Cas. 611; Halsted v. Postal Telegraph Cable Co., 120 App. Div. 433, 104 N. Y. Sup. 1016, affirmed by the Court of Appeals 193 N. Y. 293, 85 N. E. 1078, 19 L. R. A. (N. S.) 1026, 127 Am. St. Rep. 952; Ellis v. American Telegraph Co., 13 Allen (Mass.) 226; McGehee V. Western Union Telegraph Co., 169 Ala. 109, 53 South. 205, Ann. Cas. 1912B, 512; M. M. Stone & Co., v. Postal Telegraph Co., 31 R. I. 174, 76 Atl. 762, 29 L. R. A. (N. S.) 795; Western Union Telegraph Co. v. Van Cleave, 107 Ky. 464, 54 S. W. 827, 92 Am. St. Rep. 366; Coit v. Western Union Telegraph Co., 130 Cal. 657, 63 Pac. 83, 53 L. R. A. 678, 80 Am. St. Rep. 153; Frazier v. Western Union Telegraph Co., 45 Ore. 414, 78 Pac. 330, 67 L. R. A. 319, 2 Ann. Cas. 396; Western Union Telegraph Co. v. Dant, 42 Wash. Law Rep. 722 (D. C. Court of Appeals); Findlay v. Western Union Telegraph Co. (C. C.) 64 Fed. 459; Culberson's Case, 79 Tex. 65, 15 S. W. 219; Manier's Case, 94 Tenn. 442, 29 S. W. 732.

telegraph company; but that no relation of contract exists between the receiver of the dispatch and the telegraph company and that the proper remedy of the receiver of the dispatch for damages on account of its alteration is an action in tort."

In Tobin v. W. U. T. Co., 146 Pa. St. 375, 28 Am. St. Rep. 802, it was held that conditions in repeated messages apply to the persons sending them and not to recipients. In an older Pennsylvania case it was said: "The proposition that the defendant is liable, if at all, only in case the message is repeated as contained in printed conditions can be invoked only as against the sender, as against any, for it is his message, his language that is to be transmitted and it is only known to the receiver when delivered and as delivered. He is to be guided or informed by what is delivered to him and he has no opportunity to agree upon any such condition before delivery."

In W. U. Tel. Co. v. McKibben, 114 Ind. 511, 14 N. E. 894, a statutory provision given to anyone injured "in receiving, copying, transmitting or delivering dispatches" took away the effect, so far as addressee was concerned, of a stipulation in a contract between sender of a message and the company transmitting it.

The great abundance of cases, however, holds as the instant case and for the identical reason therein stated, and we think they are the better reasoned. C.

NOTE. Addressee Bound by Stipulations on Back of Telegram Same as Sender.-It must be thought, that the American doctrine, which gives to an addressee, contrary to what is regarded as the English doctrine, the right to sue a telegraph company for negligence in transmission or delivery, is by the great weight of authority subject also to the principle stated in the instant case. Nevertheless there is some authority to the contrary and it is only the opposed cases cited in this note. If the stipulation is valid as to the sender, it is also valid as to the addressee and for the reason stated in the instant case.

But it was ruled in Texas Court of Civil Appeals, which recognizes the doctrine thus stated, but it was said that as "addressee was ignorant of the stipulation requiring suit to be brought within a certain time and such ignorance was continued by fraudulent acts of defendant in preventing addressee from ascertaining the conditions of the stipulation," he was not barred from his suit. W. U. T. Co. v. Timmons, 136 S. W. 1169. This refines upon the doctrine of agency in the sender. When there is a limitation of time expressed it operates or may operate against the addressee from a different or later date than against the sender. W. U. T. Co. v. Smith, Tex. Civ. App., 130 S. W. 622.

Webbe v. W. U. T. Co., 169 Ill. 610, 48 N. E. 670, 61 Am. St. Rep. 207, is a holding by a unanimous court and it strongly contests the principle laid down by the instant case. It was said: "We have held that the relation of contract exists between the sender of the dispatch and the

ITEMS OF PROFESSIONAL INTEREST.

PROGRAM OF THE NEXT MEETING OF THE TEXAS BAR ASSOCIATION.

The annual meeting of the State Bar Association will be held at Galveston the third, fourth and fifth days of July, and by special invitation of the Galvez Hotel, will meet in the Convention Hall of that famous hostelry, which overlooks the Gulf and where the ardor of debate may be constantly cooled by the refreshing sea breezes.

Hon. S. T. Bledsoe, Assistant General Solicitor of the Atchison, Topeka & Santa Fe Railway System, will be a special guest of the Association, and will address it on the subject: "The Constitution and Commerce Among the States."

A distinguished New York lawyer, who has been officially and actively connected for more than a quarter of a century in the State of New York with the movement in that state for the "Consolidation of Statutory Law," an effort, as the name implies, to bring order out of the chaos of legislative enactments and to make the law more certain and accessible, has

been invited to address the Association, and there is strong reason to believe that he will accept.

Hon. R. L. Batts, of Austin, special counsel for the U. S. Government in New York, New Haven & Hartford trust prosecutions, in New York, will read a paper on: "Some Undetermined Aspects of the Anti-Trust Law;" Hon. Wm. H. Wilson, General Attorney of the I. & G. N., will read a paper on: "Primary Elections as an Instrument of Popular Government;" Hon. W. L. Estes, of Texarkana, on: "Rodger B. Taney;" Hon. Tom J. Lee, of San Antonio, on: "Some Phases of International Law Relating to the Claims of Citizens for Indemnity Resulting from the Revolutionary Conditions of Mexico;" Judge A. E. Wilkinson, reporter for the Supreme Court, on: "The Authorship of the Texas Homestead Laws;" Judge F. A. Williams, of Galveston, late of the Supreme Court, has been asked to read a paper on: "What can be done to Aid the Supreme Court?"

Hon. Cecil H. Smith, of Sherman, has been specially charged with arranging a toast list for the banquet, and his list already includes Judge Gordon Russell, Judge E. B. Perkins, of Dallas, Col. W. L. Crawford, of Dallas, and Hon. Quince Mahaffey.

A special invitation has been extended to the Judges of the United States Circuit Court of Appeals for the Fifth District, and it is earnestly hoped that they will be able to attend. Special invitation is also extended to the members of the State Appellate Courts, and it is hoped that every member of those courts be present.

PROGRAM FOR THE MEETING OF THE IOWA STATE BAR ASSOCIATION.

The next meeting of the Iowa State Bar Association will be held at Dubuque, Thursday and Friday, June 29th and 30th, 1916.

The principal address on Thursday morning will be by Mr. James C. Sanders of Fort Madison, entitled, "The Criminal From the Prison Viewpoint." At 12 o'clock the Association will be the guests of the Dubuque Bar Association, and will be taken on a steamboat ride on the Mississippi river, returning about 3 o'clock.

At the afternoon session on Thursday, the convention will be favored with the annual address by Justice James G. Johnson, of Spring

field, Ohio; the subject of the address is "Our Citizenship and Our Jurisprudence."

The annual banquet will be given Thursday evening at the Hotel Julien Dubuque, the toastmaster being Judge A. N. Hobson of West Union. The following speakers will respond

to toasts: Judge Robert Bronson of Dubuque, to the toast, "Don't Worry;" Judge J. J. Clark of Mason City, to the toast, "The Woman in the Case;" Senator H. L. Adams of Des Moines, to "Motions Overruled;" Hon. J. W. Willett of Tama, to "Reminiscences;" and Hon. Alexander R. Miller to "The Country Town."

At the Friday morning session, Mr. Charles Pergler of Cresco, will read a paper entitled, "The Lawyer in the Struggle for Democracy;" and at the same session Mr. Charles M. Dutcher of Iowa City, will read a paper entitled, "The Jury and How to Improve It." At the afternoon session the president, Judge A. N. Hobson, will address the Association on "Some Suggested Legislation." There will be reports from the usual committees.

BAR ASSOCIATION MEETINGS FOR 1916WHEN AND WHERE TO BE HELD.

American-Chicago, August 30, 31 and September 1.

Alabama-Decatur, July 14 and 15. California-Del Monte, August 17, 18 and 19. Colorado Colorado Springs, July 7 and 8. Indiana-Lafayette, July 12 and 13. Iowa-Dubuque, June 29 and 30. Kentucky Louisville, July 6 and 7. Maryland-Deer Park, June 29, 30 and July 1. Michigan-Battle Creek, June 30 and July 1. Minnesota-Duluth, August 8, 9 and 10. Montana-Missoula, latter part of July. New Hampshire-Newcastle, June 30 and July 1.

New Mexico-Santa Fe, August 14 and 15. North Carolina-Wrightsville Beach, June