FEBRUARY 6, 1923, 2 COMP. GEN. 479

FEBRUARY 6, 1923, 2 COMP. GEN. 479

SET-OFF - EXPENSES CAUSED BY ERRONEOUS TRANSMISSION OF TELEGRAMS WHERE A TELEGRAPH COMPANY ERRONEOUSLY TRANSMITS A TELEGRAM AND SUCH ERROR CAUSES THE GOVERNMENT ADDITIONAL EXPENSE THE SAME MAY BE CONSIDERED AS A BREACH OF CONTRACT. WHERE THERE IS AN ERRONEOUS TRANSMISSION OF TELEGRAMS THE SENDER HAS THE CHOICE OF REMEDIES AND MAY ASSERT A CLAIM EITHER ON CONTRACT OR IN TORT. WHERE A CONTRACTOR IS INDEBTED TO THE GOVERNMENT UNDER ONE CONTRACT, THE GOVERNMENT MAY CHARGE THE AMOUNT SO DUE AS A SET-OFF AGAINST THE GOVERNMENT'S LIABILITY TO THAT CONTRACTOR ON ANOTHER CONTRACT. EVERY CREDITOR HAS THE RIGHT TO APPLY THE MONEYS OF HIS DEBTOR IN HIS HANDS IN THE EXTINGUISHMENT OF CLAIMS DUE HIM FROM THE DEBTOR. THIS IS A COMMON-LAW RIGHT AND MAY BE EXERCISED ON GENERAL PRINCIPLES BY THE GOVERNMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 6, 1923:

THE WESTERN UNION TELEGRAPH CO. APPLIED AUGUST 3, 1922, FOR REVIEW OF SETTLEMENT NO. W-147754, DATED JULY 14, 1922, ALLOWING ITS CLAIM IN THE SUM OF $609.76 AND DEDUCTING THEREFROM THE SUM OF $600.50 DUE THE UNITED STATES ON ACCOUNT OF MONEY EXPENDED AND OCCASIONED BY ERRORS COMMITTED BY CLAIMANT IN THE TRANSMISSION OF TELEGRAMS, RESULTING IN THE NET AMOUNT OF $9.26 CERTIFIED AS DUE THE CLAIMANT.

THE FACTS IN THIS CASE MAY BE BRIEFLY SUMMARIZED AS FOLLOWS:

ON JULY 3, 1921, THE NINTH CORPS HEADQUARTERS DELIVERED TO THE WESTERN UNION TELEGRAPH CO. A TELEGRAM TO BE TRANSMITTED TO 78 CANDIDATES, DIRECTING THEM TO PROCEED TO THE CITIZENS' MILITARY TRAINING CAMP AT CAMP LEWIS, WASH., WHICH TELEGRAM READS AS FOLLOWS: TO ALL NAMED ON ATTACHED LIST:

CORPS AREA COMMANDER DIRECTS YOU PROCEED TO TRAINING CAMP, CAMP LEWIS. CAMP OPENS JULY 6. REASONABLE DELAY IN REPORTING ALLOWED. TRAVEL NECESSARY IN PUBLIC SERVICE.

A. R. EMERY.

THROUGH ERROR OF THE WESTERN UNION TELEGRAPH CO. THIS TELEGRAM WAS SENT TO 13 OF THE CANDIDATES NAMED ON THE LIST WITH THE WORDS "SAN FRANCISCO" APPEARING IN THE TELEGRAM RECEIVED BY EACH CANDIDATE INSTEAD OF "CAMP LEWIS.' SAID CANDIDATES NOT KNOWING OF THIS ERROR IN THE TRANSMITTING OF THE TELEGRAM, OBEYED THE INSTRUCTIONS CONTAINED IN THE TELEGRAMS DELIVERED TO THEM AND REPORTED AT THE CITIZENS' TRAINING CAMP AT THE PRESIDIO, NEAR SAN FRANCISCO, CALIF. BY REASON OF THIS ERROR THE GOVERNMENT SUFFERED LOSSES AMOUNTING TO $600.50, THAT BEING THE DIFFERENCE IN THE COST OF TRANSPORTING THE 13 CANDIDATES TO SAN FRANCISCO INSTEAD OF TO CAMP LEWIS.

IT IS SHOWN THAT THERE IS DUE THE WESTERN UNION TELEGRAPH CO. FROM THE GOVERNMENT THE SUM OF $609.76, COVERING SERVICE RENDERED THE ADJUTANT GENERAL'S OFFICE, THE QUARTERMASTER GENERAL'S OFFICE, AND THE AIR SERVICE OF THE WAR DEPARTMENT DURING FEBRUARY, MARCH, APRIL, AND MAY, 1922. ACCOUNT STATED BY THIS OFFICE, SETTLEMENT W-147754, $609.76 WAS ALLOWED AND FROM THIS AMOUNT THERE WAS DEDUCTED THE SUM OF $600.50, THE SAME REPRESENTING THE EXACT AMOUNT OF MONEY LOSS SUFFERED BY THE UNITED STATES ON ACCOUNT OF TRANSPORTATION PAID AS AFORESAID BECAUSE OF THE ERROR COMMITTED BY CLAIMANT IN THE TRANSMISSION OF THE TELEGRAM TO THE 13 CANDIDATES.

THE TELEGRAPH COMPANY DOES NOT CONTEND THAT THE ERROR AS CLAIMED WAS NOT COMMITTED BY IT, BUT URGES THAT THE LOSS SUSTAINED BY THE UNITED STATES ARISES OUT OF A TORT AND THAT THE PRINCIPLES OF SET-OFF DO NOT APPLY TO CLAIMS OF THIS CHARACTER. THE LAW IS WELL SETTLED THAT WHERE A MESSAGE IS ACCEPTED BY THE TELEGRAPH COMPANY FOR TRANSMISSION A FAILURE TO PROMPTLY AND ACCURATELY TRANSMIT AND DELIVER THE SAME IS NOT ONLY A BREACH OF PUBLIC DUTY BUT A BREACH OF CONTRACT. SEE 37 CYC., 1709, 1710, AND CASES THERE COLLECTED.

THE SENDER OF A MESSAGE MAY MAINTAIN AN ACTION AGAINST A TELEGRAPH COMPANY FOR FAILURE TO TRANSMIT OR MISTAKE IN TRANSMITTING THE SAME AND SUCH AN ACTION MAY BE REGARDED EITHER AS A BREACH OF CONTRACT OR AS A BREACH OF PUBLIC DUTY, I.E., A TORT. SEE FIRST CORPUS JURIS, PAGE 1030; HALE ON DAMAGES, PAGE 264; D. E. RUTTE V. TELEGRAPH CO., 1 DALY, 547; GRAY V. WESTERN UNION TELEGRAPH CO., 87 GA., 350; REESE V. WESTERN UNION TELEGRAPH CO., 123 IND., 294; CORDELL V. WESTERN UNION TELEGRAPH CO., 149 N.C., 402; WOODS V. WESTERN UNION TELEGRAPH CO., 148 N.C., 1; WESTERN UNION TELEGRAPH CO. V. HILL, 50 SO.REP., 248.

THE SENDER OF A MESSAGE HAS THE CHOICE OF REMEDIES AND MAY SUE EITHER ON CONTRACT OR IN TORT. CAR LAND V. WESTERN UNION TELEGRAPH CO., 118 MICH., 369. FIRST CORPUS JURIS, PAGE 1030, AND CASES THERE COLLECTED.

IT HAS LONG BEEN THE HOLDING OF THE COURTS THAT WHERE A CONTRACTOR IS INDEBTED TO THE GOVERNMENT UNDER ONE CONTRACT THE GOVERNMENT MAY CHARGE THE AMOUNT SO DUE AS A SET-OFF AGAINST THE GOVERNMENT'S LIABILITY TO THAT CONTRACTOR ON ANOTHER CONTRACT. SEE BARRY V. UNITED STATES, 229 U.S., 47- 53. EVERY CREDITOR HAS THE RIGHT TO APPLY THE MONEYS OF HIS DEBTOR IN HIS HANDS IN THE EXTINGUISHMENT OF CLAIMS DUE HIM FROM THE DEBTOR. THIS IS A COMMON-LAW RIGHT AND MAY BE EXERCISED ON GENERAL PRINCIPLES. SEE BARRY V. UNITED STATES, SUPRA; 15 PETER, 370; 98 U.S., 186; 4 LAWRENCE (1ST COMP. DEC.), 504.

THE ONLY ITEMS FOR WHICH DEDUCTION WAS MADE WERE THOSE OF ACTUAL EXPENDITURES BY THE UNITED STATES DIRECTLY DUE TO THE ERRORS COMMITTED BY CLAIMANT IN TRANSMITTING THE TELEGRAM. THE AMOUNT IS DETERMINABLE WITH DEFINITENESS AND CERTAINTY AND EVERY OPPORTUNITY IS AFFORDED THE TELEGRAPH COMPANY, SO THAT IF IT HAS OBJECTIONS THERETO THEY MAY BE CONSIDERED IMMEDIATELY IF DULY PRESENTED, OR SUBSEQUENTLY UPON REQUEST FOR REVIEW OF THE SETTLEMENT. SUCH MATTERS ARE PROPER FOR SETTLEMENT BY THIS OFFICE. SEE SEC. 305, ACT OF JUNE 10, 1921, 42 STAT., 23, AMENDING SECTION 236 OF THE REVISED STATUTES.