## Facts

- Ayer, a Bangor lumber dealer, paid Western Union’s regular tariff to transmit a telegram to a Philadelphia correspondent offering to sell 800,000 laths.
- The message as filed offered a price of “two ten net cash” ($2.10 per thousand), with July shipment requested and a prompt reply.
- Western Union delivered a different message in Philadelphia that omitted the word “ten,” stating “two net cash” ($2.00 per thousand).
- The Philadelphia correspondent promptly accepted the transmitted offer by telegram.
- Subsequent letters between the parties disclosed the transmission error.
- After discovery, Ayer shipped the laths at $2.00 per thousand because the correspondent insisted on the accepted telegraphic terms.
- Ayer sued Western Union in an action on the case to recover damages caused by the transmission error.
- Western Union offered no evidence explaining the mistake or showing it resulted from causes beyond its control.

## Issues

1. Whether, on an unexplained discrepancy between the message filed and the message delivered, Western Union was presumptively at fault for the transmission error.
2. Whether Western Union’s liability was limited to the price paid for the telegram or extended to the sender’s actual loss caused by the erroneous price term.

## Decision

- The court treated the error as attributable to Western Union because the message delivered differed from the message filed and the company offered no evidence to rebut a presumption of fault.
- The court rejected Western Union’s contention that damages were limited to the telegram fee.
- The court held Ayer could recover the loss proximately caused by the error in transmitting the price term.
- Judgment was for Ayer.

## Legal Principles

- When a telegraph company delivers a message materially different from the message accepted for transmission and offers no explanation, fault for the error is presumed.
- A telegraph company that negligently transmits a commercial message may be liable for consequential damages that naturally result from the error and are reasonably foreseeable from the message’s business purpose.
- Damages for negligent transmission are not confined to refunding the transmission charge when the negligent error causes the sender to suffer an economic loss tied to the misstated term.
- The sender may recover from the telegraph company even though the immediate loss is realized through performance of a contract with a third party formed in reliance on the erroneous message.

## Conclusion

Western Union’s unexplained omission of a material price term established fault and supported recovery of the business loss caused by the mistaken offer; the sender’s damages were not limited to the telegraph fee but included the actual loss attributable to being held to the lower transmitted price.


Ayer v. W. Union Tel. Co., 79 Me. 493, 10 A. 495 (Me. 1887)