Bird v. Western Union Tel. Co.

• Decision Date: 22 March 1907
• Citation: 56 S.E. 973,76 S.C. 345
• Parties: BIRD v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

56 S.E. 973

76 S.C. 345

BIRD v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

March 22, 1907

Appeal from Common Pleas Circuit Court of Cherokee County.

Action by D. R. Bird against the Western Union Telegraph Company. Judgment of nonsuit, and plaintiff appeals. Affirmed.

N. W Hardin, for appellant. Geo. H. Fearons, Evans & Finley, and J. C. Jeffries, for respondent.

WOODS J.

This appeal is from an order of nonsuit in an action to recover damages for an alleged loss arising from delay in transmitting a business telegram.

Taking as true the testimony of the plaintiff, these facts were before the court: The plaintiff, a merchant, had failed in business at Blacksburg, and had filed his petition in bankruptcy. The trustee in bankruptcy advertised the stock of goods for sale to the highest bidder. While the evidence on the point is vague, we infer the plan adopted was to take private bids; the requirement being that they should be submitted by 12 o'clock m., 7th of October, 1904. The plaintiff had not settled with his creditors, nor obtained his discharge, but, in the expectation of doing so, wished to buy the stock of goods and reopen business. With this end in view, he had entered into negotiations with J. N. Cudd, a resident of Spartanburg, looking to a loan from him of $4,000, which would enable him to submit a bid of 63 per cent. of $7,000, the appraised value of the goods. These negotiations had progressed to the point of agreement by Cudd to advance $4,000, taking as security a mortgage of the stock of goods and of a storehouse formerly the property of the plaintiff, but then held by the trustee in bankruptcy. Plaintiff expected Cudd in Blacksburg on the day of the sale to perfect the arrangement and thus enable him to bid on the stock of goods. When he failed to appear plaintiff, at about 9 o'clock a. m., delivered to the defendant telegraph company for transmission this message "Blacksburg, S. C., Oct. 7th, 1904. To J. N. Cudd Spartanburg, S. C.: Shall I bid for you at amount agreed upon? Answer. D. R. Bird." The answer was: "Spartanburg, S. C., Oct. 7th, 1904. To D. R. Bird, Blacksburg, S. C.: I am willing to advance four thousand dollars on stock and storehouse on terms agreed. J. N. Cudd." This answer did not reach plaintiff until about 1 o'clock p. m., after the goods had been sold to another bidder at 59 per cent. of the appraised value. The plaintiff testified the goods would have been worth to him, in the new business which he intended to open, at least $1,500 over the bid he intended to make. Cudd's testimony, offered by the plaintiff, was to the effect there was no agreement that he would bid on the goods and that he would not have made himself liable for any bid; that he never contemplated anything more than advancing $4,000 on a mortgage of the stock of goods and the storehouse; that he would not have loaned the money until satisfied of the plaintiff's title to the storehouse; and that he was not informed on that subject on the day of sale.

The nonsuit was proper...