When the machinery of the steamer became disabled she started for Wilmington. En route there, the master sent the pilot ashore at Southport, North Carolina, with a telegram to the steamer's agents in New York, Bowring & Company, advising them of the steamer's condition and directing them to inform the charterer.. This they first attempted to do by telephone and one of the disputes in the case to .which much testimony and discussion have been directed, was whether Bowring & Company did telephone or not. They have produced apparently reliable witnesses to show that the respondent's office was called up immediately upon receipt of the message and some one there advised of its contents. The identity of the alleged recipient was not established and the only person who was actually in the respondent's office, denied the receipt of the message. Conversing by telephone has in recent years become a recognized means of business communication. When the identity of what is called the antiphonal speaker is established and he is shown to have been the party or his agent, there can be little doubt of the propriety of admitting the conversation in evidence. See Greenleaf on Evidence, § 430q, p. 533; Wigmore on Evidence, § 669 (8); Jones on Telegraph and Telephone Companies, § 697. Here the identity of the person spoken with was not established conclusively and any presumption which might have arisen from the respondent's office having been called and responded to is overcome by the unqualified testimony of the one person in the office that no such message was received. I think that any claim of notice by telephone must be disregarded. The telephone was followed up by what was called a confirmatory letter, which was as follows: Mr. M. S. Arrue, Bridge Street, New York. "New York, Sept. 5, 1906. Dear Sir:-S. S. DISA. We regret to have to advise you that we have just received telegraphic advices from Southport, North Carolina, that this steamer has put in there with machinery out of order, and is proceeding to Wilmington, North Carolina, for necessary repairs. We shall promptly advise you when we have any further advices. We are Yours faithfully Bowring & Company L. L. Richards Manager S. B. Dept. Agents." Instead of sending this letter by hand to the respondent, a few minutes distance away, it was mailed and postmarked "Sep 5, 6 P. M." and did not reach the respondent until the next morning at 10 o'clock. He contends that owing to the delay in advising him of the accident to the steamer, loss was suffered. Without waiving any rights to his claim for damages caused by neglect to notify him promptly of the breakdown of the steamer, he consented to use her further and she continued her voyage to Cuba. My attention has not been called to any provision of the contract which imposed upon the libellant such a duty as is claimed here by the respondent. In section 5 it is said that: "Captain to report at charterers office at least once a day" but that obviously was only intended to be in force when the vessel should be in port and I find nothing imposing any obligation upon the master to immediately report a disaster at sea. Of course there was a duty upon the libellant to let the charterer know of any accident which would interfere with his profitable use of the vessel. The master was to be furnished with instructions and sailing directions and that required a knowledge of her movements but it is quite a different thing from the duty claimed to have existed in this case. The respondent testified that he directed the master to call August 29th at 10 A. M. to sign the charter and receive sailing instructions but the master called earlier in the morning and not finding the respondent sailed without instructions, which the respondent was obliged to cable to Cuba and he notified his agent that the steamer would arrive there the next Tuesday, September 4th, and not to cut the fruit before that time. It was cut that day for delivery Wednesday the 5th. At this time the steamer was broken down and there was no probability of her reaching Baracoa for several days. If the respondent had known this, he might have done something to save the fruit. The steamer, however, was not able to communicate with the shore until September 4th, not in time to prevent, through New York, the cutting of the fruit, though perhaps in season to arrange for its forwarding by another steamer, but this is not clear enough to be made the basis of a claim for damages, which were doubtless due to the premature cutting of the fruit, which was the proximate cause of the loss. It is doubtful, moreover, if any recovery could be had from the libellant. The case is very similar to Nine Thousand Bunches of Bananas, 55 Fed. 1003, 5 C. C. A. 386, where it was held that a cutting of bananas in the case of a breakdown and delay of the steamer Curlew, in this trade between Baltimore and Jamaica, was due to a premature cutting of the fruit. In that case, as here, there was a provision in the charter party for exemption of the steamer from liability due to an accident to the machinery and it was held that there could be no recovery for a loss arising from decay of the bananas. There will be a decree for the original libellant, with an order of reference. The cross libel will be dismissed. PURDOM NAVAL STORES CO. v. WESTERN UNION TELEGRAPH Co. (Circuit Court, S. D. Georgia, W. D. May 3, 1907.) 1. TELEGRAPHS-MESSAGES-FAILURE TO DELIVER-RIGHT TO SUE. Where P., in sending a message, accepting a proposition for the sale of a business in his own name, was in fact acting as agent of plaintiff, plaintiff was entitled to sue the telegraph company for failure to deliver the message. [Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 37.] 2 FRAUDS, STATUTE OF-CONTRACT-MEMORANDUM-SUFFICIENCY. The statute of frauds does not require that every detail of an agree ment for the sale of chattels shall be in writing at the time the contract is made, but only requires that some memorandum or note thereof shall be in writing at some time prior to suit brought. [Ed. Note. For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, § 210.] 3. CONTRACTS-ACCEPTANCE BY AGENT-TELEGRAM. A telegram, accepting an offer for the sale of a business, signed by plaintiff's agent acting for plaintiff, was sufficient to make an enforceable contract. [Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, § 120.] 4. FRAUDS, STATUTE OF RIGHT TO DEfense. The benefit of the statute of frauds as a defense is personal, and cannot be availed of by a third person. [Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, § 344.] 5. CONTRACTS-OFFER AND ACCEPTANCE. A corporation, operating a naval stores business offered its property on September 19, 1905, for $13,900, when the company had finished its year's business, the offer to be open for acceptance on or before October 4, 1905. On October 3d plaintiff forwarded. a telegram of acceptance. Held, that the offer contemplated an immediate sale on acceptance, though possession was not to be surrendered until the expiration of the year's business, and hence the offer was not so conditional that its acceptance would not constitute a contract. 6. TELEGRAPHS-MESSAGES-FAILURE TO DELIVER-PLEADING. Where a telegraph company failed to deliver a message, accepting an offer for the sale of the addressee's business, possession to be delivered on completion of the addressee's business year, a complaint for damages, failing to definitely allege the time when possession and delivery were to be accomplished, was defective. 7. SAME-DAMAGES. Where a telegraph company failed to deliver a message, accepting a corporation's offer to sell its business for a specified price within a certain time, and the corporation thereupon refused after the expiration of the time to comply with such offer, the telegraph company was liable to the sender of the message for the difference between the price specified in the offer, and the value of the corporation's business at the time an acceptance was attempted. [Ed. Note. For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 72. Measure of damages in actions against telegraph and telephone companies, see note to Western Union Telegraph Co. v. Coggin, 15 C. C. A. 235; Western Union Telegraph Co. v. Morris, 28 C. C. A. 39.] 8. SAME-RULES-APPLICATION. A rule of a telegraph company, that it would not be liable for damages in case of an unrepeated message, was inapplicable, where there was an utter failure to deliver the message at all. [Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, §§ 39, 43, 46.] 9. SAME-SUBSTANTIAL COMPLIANCE. Where two messages in the same terms were sent to two different points a short distance apart, by which plaintiff attempted to accept a corporation's offer for the sale of its business, in either of which places the vendor could have been found, such telegrams constituted a substantial compliance with the rule of the telegraph company, requiring that a message be repeated in order to create a liability on the telegraph company. George S. Jones, for plaintiff. Joseph H. Hall, Warren Roberts, and Charles Akerman, for defendant. SPEER, District Judge. The Purdom Naval Stores Company brings its action for damages against the Western Union Telegraph Company for an alleged failure to deliver a telegram. The petition states that on September 19, 1905, the Pineville Naval Stores Company made to the plaintiff an offer in writing to sell its turpentine and naval stores business, with all property and effects, located at Hahira, Ga., for the sum of $13,900. This offer, after describing the property in question, is as follows: "We offer the above property when we have finished our year's business for $13,900." By agreement, these terms were left open for acceptance on or before October 4, 1905. On October 3d, I. W. Purdom, president of the plaintiff company, delivered to the defendant's agent in the city of Savannah, a telegraphic acceptance of the offer made by the Pineville. Naval Stores Company. This was addressed to one J. F. Robinson, manager of the company, at Cecil, Ga., and is in this language: "We will take your Hahira place. Will be home noon train tomorrow. Meet me. "[Signed] I. W. Purdom." The telegram was not delivered until October 12th, and the time for acceptance having expired, the Pineville Company withdrew their offer, and refused to sell. The plaintiff, therefore, claims as damages against the telegraph company the amount of $3,100. This is the difference between $17,000, the alleged market and actual value of the property, and the price at which the plant was offered. The defendant has demurred to the petition upon the following grounds: (1) That it does not appear from the message that the Purdom Naval Stores Company ever had any contract with the telegraph company, or that L. W. Purdom, the sender of the message represented the plaintiff company. "(2) On the special grounds, that the facts as alleged do not sufficiently show the value of the property, or how the damages claimed arose." The telegraph company contends that it is not liable, as the identity of the sender was not disclosed to its agent at Savannah, because the message was sent by Purdom, the president, and not in the company's name. It further seeks in argument to set up the statute of frauds, on the ground that the memoranda between the plaintiff and the Pineville Company do not comply with the requirements of the statute, and therefore constitute no valid contract. The contention is also made that the Pineville Company could not have been bound, because the offer was not immediate and unconditional; but the sale was to be made only upon the termination of the year's business. The defendant company cannot then, it claims, be held liable for damages, which it insists the plaintiff would not have suffered. From the pleadings it is obvious that Purdom was, in fact, the agent of the plaintiff company. It is the general rule that where an agent enters into a contract for his principal, without disclosing that principal's existence, the other party may, at his election, hold either the principal or the agent. In other words, the principal may be held liable at the party's option, but the agent also, by presuming to act in his own name, renders himself individually liable. Welch v. Goodwin, 123 Mass. 71, 25 Am. Rep. 24; Merrill v. Kenyon, 48 Conn. 314, 40 Am, Rep. 174. The agent, however, being in a fiduciary relationship, cannot, by thus acting individually, defeat his principal's rights. The real principal, therefore, may avail himself of his agent's transactions in that capacity, and, if a contractual relation has been created thereunder with a third party, the principal may sue upon that contract. Dodd Grocery Co. v. Postal Telegraph Co., 112 Ga. 685, 37 S. E. 981; Taintor v. Prendergast, 3 Hill (N. Y.) 72, 38 Am. Dec. 618; Hunter v. Giddings, 97 Mass. 41, 93 Am. Dec. 54; Wood v. Bank, 129 Mass. 358, 37 Am. Rep. 366. Obviously, then, the fact that the message was signed and sent by its agent will not of itself defeat the Purdom Company's right of action. Besides, if it be made to appear by the proof that Purdom was in fact acting for his company, it would suffice, so far as that question is involved, to maintain this action. The telegraph company was no party to the contract of sale. Its contract was to transmit and deliver the message for the usual toll. Nor can the telegraph company avail itself of the statute of frauds. To enforce such a contract, it is not necessary that every detail of the agreement, but only that some memorandum or note thereof, shall be in writing. This need not be at the time of making the contract. It may be at any time prior to the action. The statute merely states that "no action shall be brought." Failure to comply with its terms does not then render the contract void, but unenforceable. Bird v. Munroe, 66 Me. 337, 22 Am. Rep. 571; Townsend v. Hargraves, 118 Mass. 325. Since Purdom acted as agent for the company, his signature on the telegram of acceptance made an enforceable contract. Heffron v. Armsby, 61 Mich. 505, 28 N. W. 672; Williams v. Woods, 16 Md. 220. It is besides true that the benefit of the statute of frauds as a defense is entirely personal, and cannot be set up by third parties. Cahill v. Bigelow, 18 Pick. 369; Dailey v. Kindler, 35 Neb. 835, 53 N. W. 973; St. Louis R. Co. v. Clark, 121 Mo. 169, 25 S. W. 192, 906, 26 L. R. A. 751; Clark on Contracts (2d Ed.) 96. It follows that whether or not the statute was complied with by the parties to the proposed sale, that question cannot now be raised by the defendant company, which was no party to the transaction. The telegraph company, however, claims that there was no such unconditional offer as would make a valid contract, from the loss of which damages would flow. But it is clear from the alleged circumstances surrounding the transaction that there was an agreement for immediate sale in contemplation of the parties. It is true that possession was not to be surrendered until the expiration of the year's business; but this did not affect the validity of the agreement. This is clear from the fact that a time limit until October 4, 1905, had been affixed to the Pineville Company's proposition; but the acceptance by the Purdom Company within that time would have been complete had the message been transmitted. As grounds of special demurrer, the defendant claims that it is not sufficiently apprised by the plaintiff's averments either as to the basis of value of the property, or the nature of the damages claimed. It further insists that the plaintiff is not entitled to the difference between the offered price and the market value, but only by way of nominal damages to the cost of sending the telegram. Since the familiar case of Hadley v. Baxendale, 9 Exchequer, 341, the principle of damages |