Brewster v. Western Union Tel. Co.

• Decision Date: 15 October 1898
• Citation: 47 S.W. 560
• Parties: BREWSTER et al. v. WESTERN UNION TEL. CO.
• Court: Arkansas Supreme Court

47 S.W. 560

BREWSTER et al. v. WESTERN UNION TEL. CO.

Supreme Court of Arkansas.

October 15, 1898.

Appeal from circuit court, Jefferson county; John M. Elliott, Judge.

Action by A. Brewster and others against the Western Union Telegraph Company. There was a judgment for plaintiffs, from which they appeal. Affirmed.

The appellants, A. Brewster, W. Z. Tankersley, and J. M. Fain, were partners under the firm name of J. M. Fain & Co., and engaged in the business of buying and selling cattle. Brewster and Tankersley lived at Pine Bluff, Ark., while Fain made his home at Jennings, La. On the 8th day of May, 1895, Fain made, for said J. M. Fain & Co., an agreement with one T. D. Langley to purchase of said Langley 200 head of cattle, at $12 per head, but this contract was subject to the approval of Brewster and Tankersley, the partners of Fain. It was agreed between Langley and Fain that Fain should communicate with his partners, and notify Langley if said contract was accepted, on or before noon of May 14, 1895, and that, if Langley was not notified of the acceptance within that time, said contract would be declared off. Fain at once wrote to Brewster and Tankersley, and informed them of the terms of the contract. They, on the 13th of May, delivered to the defendant company a message addressed to Fain at Jennings, La., directing and authorizing him to close the trade for the 200 head of cattle, and paid said company the sum of 75 cents for the transmission of said message. The company failed to deliver the telegram until 7 o'clock p. m. of the 14th of May, 1895. The time given for the acceptance of the contract expired before the telegram was delivered, and plaintiffs failed to get the cattle. Appellants brought this action against the telegraph company to recover damages of them for negligently failing to deliver said telegram in due time. On the trial in the circuit court the presiding judge directed the jury to return a verdict in favor of plaintiffs for only the price paid for the telegram. Plaintiffs appealed from the judgment rendered upon the verdict thus returned. The other facts appear in the opinion.

Bridges & Wooldridge, for appellants. Rose, Hemingway & Rose, for appellee.

RIDDICK, J. (after stating the facts).

This is an action against a telegraph company to recover damages alleged to have been caused by negligence on the part of said company in transmitting and delivering a telegram. The plaintiffs claim that, by reason of the negligence of the defendant company in the matter of delivering said telegram, they lost the right to purchase a certain 200 head of cattle from one Langley. It is conceded that the facts established make out a case of negligence against the telegraph company, and the only real controversy between the parties relates to the question of damages. The circuit judge, on motion of the defendant, instructed the jury that the plaintiffs, under the facts, could recover only the price paid for the telegram, and whether this was a correct ruling is the question we are asked to consider.

Now, the contract which plaintiffs claim to have made with Langley gave them an option to accept and purchase a lot of cattle owned by him at $12 per head, this option to expire at noon on the 14th day of May, 1895. If the telegram had been received in due time, and plaintiffs had accepted the offered purchase, they would at that time have owned the cattle, and would have paid out the contract price thereof. The telegram was delivered on said day, but not until 7 o'clock p. m., some hours after the time allowed for the acceptance of the contract had expired; so plaintiffs lost the right to purchase the cattle, but retained the money they had agreed to pay for the same. It is manifest, therefore, that plaintiffs were not injured unless on the 14th day of May, at the time the telegram was delivered, the market value of cattle of the grade purchased was at that place greater than the contract price, or unless, on account of the scarcity of cattle or for some other reason, plaintiffs could not, by the use of due diligence, after the delivery of the telegram, have purchased the like number and grade of cattle for the contract price. The law requires that a party should exercise due diligence to avoid injury to himself, and the measure of damages in such a case is the difference between the contract price of the cattle and that which plaintiffs would have been compelled to pay at the same place in order, by due diligence, after delivery of the telegram or notice of the failure to deliver it, to purchase the same number and grade of cattle. It is a matter of no moment that some days subsequent to the delivery of the telegram there was a rise in the market value of cattle, and that, if plaintiffs had purchased cattle at the contract price, they might have obtained profits from such rise in value; for the law does not permit the recovery of such...