Alexander v. Western Union Telegraph Co.

• Citation: 5 So. 397,66 Miss. 161
• Court: United States State Supreme Court of Mississippi
• Decision Date: 04 February 1889
• Parties: C. H. ALEXANDER ET AL. v. WESTERN UNION TELEGRAPH CO

5 So. 397

66 Miss. 161

C. H. ALEXANDER ET AL. v. WESTERN UNION TELEGRAPH CO

Supreme Court of Mississippi

February 4, 1889

FROM the circuit court of Oktibbeha county, HON. LOCK E. HOUSTON Judge.

The case is stated in the opinion of the court.

Judgment reversed and cause remanded.

Blame &amp Alexandr and Wiley N. Nash, for appellants.

1. It was not necessary that the authorization of Carothers, the agent, should be in writing. See Tenn. statute of frauds code of Tenn., 1884, § 2423 and note. Under the statute of this state, which was identical with that of Tennessee prior to the code of 1857, it was hem that it was not necessary that the authority of an agent to make a valid contract for the sale of land should be in writing. Curtis v. Blair, 26 Miss. 309.

But it is immaterial whether Carothers had authority to conclude a valid binding contract for the sale of the land or not.

The declaration alleges that plaintiff would have secured a good title to the lot if the message had been promptly sent, and the demurrer admits this. If plaintiff can show that Kessler owned the lot and stood ready to make the deed, and would have done so if the message had been received on the 6th what difference does it make if we concede that Carothers was without authority to make the contract? The manifest error in the action of the court below was in applying to this case the same rules that would govern if this were a suit by plaintiffs against the owner of the land for specific performance. In deciding upon the liability of the telegraph company for negligence in sending a message very different rules apply. In the one case it would be necessary to show a valid contract between the parties in order to enforce it; in the other the plaintiff shows the failure to make a contract by reason of the wrongful act of the company, a third person.

2. We contend that the telegram was an acceptance of the offer. It was tantamount to saying: "Do better if you can, but if not, close the trade." It is alleged that Carothers had no authority to sell an option, and that Kessler would not have given one. If the message had been delivered, Kessler would have said: "No, I will sell no option; fix the papers." If the lot had gone down in value two thousand dollars, he could have held plaintiffs to the bargain. Plaintiffs were in for the purchase of the lot at three thousand dollars the instant the message was sent.

3. But it is not essential that the message should be construed as being within itself an acceptance of the offer, so as to close a contract with the seller of the lot. Plaintiffs are entitled to recover if by the negligence of the company, they were prevented from making a contract, and thereby from securing a purchase that would have yielded a profit of two thousand dollars cash. Of course they are not entitled to speculative profits. Here the actual market value of the lot was five thousand dollars, and plaintiffs would have secured a title to it for three thousand dollars. No difficulty about proving such allegations as these with all reasonable certainty. We are not required to prove anything to a moral certainty. It is immaterial that the subject of this attempted purchase was land. The same rule of liability applies so far as the telegraph company is concerned, as if it had been corn or wheat, or cotton or stocks, or any kind of personal property. In the numerous commercial transactions of this country, in respect to either land or personal property, how very few telegrams in themselves, embody complete, technical contracts! Yet will it be said that a telegraph company, though guilty of gross negligence, is never to be held liable in damages in a case like the present, unless the message, if sent, would have consummated such a contract? The wrong consists in the negligence of the company, the unfaithfulness of the servant, which is the direct cause of the loss of a profitable bargain or purchase. In such a case the law will not allow the wrongdoer to escape on the ground that something might have happened to prevent the consummation of the contract. The duty of the telegraph company is to promptly send the message, no matter what form it is in, and if this is not done, and injury results, the injured party is entitled to prove what would hate been done if the duty of the carrier had been promptly complied with. If we go into the field of conjecture and speculation, it cannot be said that anything is certain. The rule contended for by opposite counsel would preclude recovery in every case where damages are attempted to be shown as the consequence of negligence or an unlawful act. Resort being had to the wires by parties in negotiation, when the telegraph company fails to transmit a message, it has nothing to do with the statute of frauds as between the contracting parties.

It is perfectly competent to prove what would have been done if a telegraphic message had been promptly transmitted, as a means for fixing the damages against the company for a failure to deliver. Parks v. Tel. Co., 13 Cal. 422; True v. Tel. Co., 60 Maine 9; Fatman v. Tel. Co., 73 Ga. 288; Daughtry v. Tel. Co., 75 Ala. 168; Tel. Co. v. Hyer, 22 Fla. 637; s.c. 1 Am. St. R. 222, note on p. 228.

4. Neither of the four eases relied upon by opposite counsel sustains the position for which they contend; but, on the contrary, in so far as they are applicable at all, these are all authorities for the plaintiffs in this ease. This is especially true of Tel. Co. v. Hall, 124 U.S. 444. In the case of Booth v. Rolling Mill Co., 60 N.Y. 487, the suit was directly between contracting parties as to the effect of a contract, and did not involve a telegraph company. The same is true of White v. Miller, 71 N.Y. 133, and of Squires v. Tel. Co., 98 Mass. 232. The following language is used in White v. Miller: "Gains prevented as well as losses sustained may be recovered as damages for a breach of contract where they can be rendered reasonably certain, and have naturally resulted from the breach." We ask no better exposition of the law as applicable to this case.

In all the cases where merely nominal damages have been allowed, and where consequential damages (such as are claimed here) have been rejected, the messages were in cipher and the company was not admonished of the importance of the business or that such damages would likely result from a failure to transmit. Here the company was distinctly informed of the importance of the message and of the necessity for promptness.

Telegraph companies hold themselves out as ready to transmit messages of every character, at rates which they fix without regulation or control. They prescribe their own rates in the conduct of a business which the public must of a necessity transact through them. With increased facilities and greater skill, they are daily becoming better prepared to discharge their duties, and public policy demands that they should be held to a high degree of diligence and a strict liability.

5. In any view of the case, the judgment must be reversed, because the plaintiff was entitled, at least, to nominal damages, the price paid for transmission of the message, and the like.

L. Brame and C. H. Alexander each made an oral argument.

E. H. Bristow, for appellee.

1. There are two cases, and only two, in which a party can recover damages for a failure to make a speculation, occasioned by a breach of contract. These are: (1) Where the breach of the contract has caused him to make a purchase at a greater price or a sale at a less price than if the breach had not occurred; and (2)where the breach of the contract has ipso facto prevented the closing of a bargain at a stipulated price--and the party, using reasonable diligence, cannot get as favorable terms.

In case of a failure to deliver a message directing a purchase, a telegraph company is liable to pay compensatory damages (1) when, by reason of the non-delivery, the sender makes a purchase at a higher price than if the message had been promptly delivered; or (2) when the message, if promptly delivered, would have ipso facto concluded a contract at a certain price, and, owing to the failure to deliver, the bargain is lost. In the former case the measure of damages is the difference between the price paid, and that at which the property could have been had. In the latter case, the measure is the difference between the price at which the purchase would have been made if the message had been promptly delivered, and the price at which it could have been had afterward by the use of reasonable diligence. Tel. Co. v. Hall, 124 U.S. 444. In all other cases, though a profitable speculation might, and probably would, have been made, yet damages cannot be recovered, because they cannot be made" reasonably certain by the evidence." Boothe v. Rolling Mills, 60 N.Y. 487; White v. Miller, 71 N.Y. 173.

"All remote, speculative, and uncertain results, as well as possible profits and advantages which might have arisen from the fulfillment of the contract, must be excluded as forming no part or legitimate basis on which to determine the extent of the injury actually caused by a breach." Squires v. Tel Co., 98 Miss. 238.

Here no transaction was, in fact, had, and there being neither a purchase nor a sale, there was no actual loss, and consequently no damages under the rule above stated.

If the message of plaintiffs had been promptly delivered, it would not have closed the contract. The offer by Carothers was positive and unconditional to sell, provided there was an acceptance by Dec. 6. To this offer to sell plaintiffs replied: "Get option if you can ; if not, close trade." The message, on its face, must be an acceptance. Squires v. Tel. Co., 98 Mass. An acceptance must comprehend the whole proposi...