CORPORATIONS-SURETY COMPANIES.

Section numbers to notes refer to the Revised Statutes of 1914 and sections herein.

5728. Bonds, surety companies execut- 5733. Release of surety from bond.

ing.

5728. Bonds, surety companies executing.

Surety companies executing bonds required by law of persons or officers, become liable for all the breaches of duty of such persons or officers although the bonds may not fully recite all the obligations assumed by the sureties. United States etc, Guaranty Co. v. Poetker, 180 Ind. 255, 102 N. E. 372.

Bonds executed by the officers of a bank organized under the laws of the state are official bonds within the meaning of the law providing that no official bond shall be void for want of recital or substance. United States etc. Guaranty Co. v. Poetker, 180 Ind. 255, 102 N. E. 372.

5733. Release of surety from bond.

Courts can not release sureties upon bonds that are given to secure the performance of duties imposed by law upon persons or officers, unless the provisions of the statute regulating the release of such sureties are complied with. American Bonding Co. v. Hall, 57 App. 523, 106 N. E. 534.

CORPORATIONS-TELEGRAPH COMPANIES.

Section numbers to notes refer to the Revised Statutes of 1914 and sections herein. ᎪᎡᎢ .

1. INCORPORATION. 5770.

SEC.

5770. Seal, powers.

5770. Seal, powers.

ART.

2. POWERS AND DUTIES. 5780-5782.

ARTICLE 1.-INCORPORATION.

Telegraph companies may exercise the right of eminent domain for the purpose of acquiring land for the location and maintenance of its necessary poles and lines; but the right of way of a railroad company can not be appropriated for such purpose when the location of the telegraph line on such right of way would materially interfere with the business of the railroad company. Western Union Tel. Co. v. Louisville etc. R. Co., 183 Ind. 258, 108 N. E. 951.

ARTICLE 2.-POWERS AND DUTIES.

SEC.

5780. Duty as to dispatches. 5781. Penalty.

SEC.

5782. Negligence and disclosure-Damages.

5780. Duty as to dispatches.

Contracts made by telegraph companies to transmit and deliver messages on Sunday are merely voidable; and a message which informs the wife of a man that because of railroad trains being late he could not arrive at home on that day, shows a necesity for sending the message on Sunday and renders the telegraph company liable for not sending and delivering the message on that day. Western Union Co. v. Fulling, 49 App. 172, 96 N. E. 967.

In view of this section and section 5781, where a telegraph message was sent by plaintiff's agent in Chicago to plaintiff's agent in Indiana, the plaintiff was held to be both the sender and the receiver, and to be the party aggrieved by negligence in delivery of the message. Western Union Tel. Co. v. Beogli, 187 Ind. 238, 115 N. E. 773.

This section and section 5781 were not rendered inoperative by Act Cong. June 18, 1910, ch. 309, section 10, 36 Stat. 549, U. S. Comp. Stat. 1916, section 8574, relating to common carriers. Western Union Tel. Co. v. Beogli, 187 Ind. 238, 115 N. E. 773.

A telegraph company assuming usual terms require payment in advance for the transmission and delivery of messages, waive such terms and become liable for the penalty provided in this section when the agent of the company accepts a message and after a delay of forty hours transmits it and collects from the addressee when it is thereby too late to accomplish the purpose of the sender. Western Union Tel. Co. v. Hadley, App. 119 N. E. 870.

Interest on penalty is not authorized by this section from the date of failure to transmit message but interest on judgment from the date thereof is authorized by section 7951, and a judgment erroneously including interest from date of failure to transmit message will be corrected best to the ends of justice by remittitur and failure to file such remittitur the judgment will be reversed. Western Union Tel. Co. v. Hadley, - App. 119 N. E. 870.

A complaint containing equivalent averments or from which it may reasonably be inferred that defendant was engaged in doing a general telegraph business is sufficient in an action for penalty in delay in delivery of a telegraph message under this section. Western Union Tel. Co. v. Hadley, App. -, 119 N. E. 870. In an action for penalty for delay in delivery of a telegraph message under this section which is submitted on an agreed statement of facts stating that defendant owned and operated a telegraph line and was a common carrier of telegrams at the time, but the complaint does not contain an agreement that defendant was doing a general telegraph business, the court on appeal will, if necessary, to an affirmance treat the complaint as amended under authority of section 405. Western Union Tel. Co. v. Hadley, App., 119 N. E. 870.

The penalty imposed by this section and section 5781, is not recoverable where a telegram was interstate. Western Union Tel Co. v. Bushnell, App. —, 128 N. E. 49.

Under this section and section 5781, a telegraph company may transmit a message having its origin and destination within the state by a route lying partly without the state, if it may be done in a safer, more practical and expeditious way. Western Union Tel. Co. v. Bushnell, App. 128 N. E. 49.

Telegraph companies may by stipulations require that claims for statutory penalties for failure to transmit or deliver messages shall be presented within a specified time, but the burden rests upon a company to prove that such a stipulation was made and that a claim for damages was not presented within the time limited. Western Union Tel. Co. v. Taylor, 57 App. 93, 104 N. E. 771. See note to section 5780.

5782. Negligence and disclosure-Damages.

If a telegraph company wrongfully and negligently fails promptly to deliver a message to the addressee, such company is liable to the addressee for such special damages as flow directly from the failure of the addressee to receive the message. Western Union Tel. Co. v. Biggerstaff, 177 Ind. 168, 97 N. E. 531.