Brooks v. The Western Union Tel. Co.

• Citation: 72 P. 499,26 Utah 147
• Decision Date: 14 May 1903
• Docket Number: 1429
• Parties: RICHARD S. BROOKS and BIRKETT B. BROOKS, Co-partners, Doing Business as R. S. BROOKS & SON, Respondents, v. THE WESTERN UNION TELEGRAPH COMPANY, a Corporation, Appellant
• Court: Supreme Court of Utah

72 P. 499

26 Utah 147

RICHARD S. BROOKS and BIRKETT B. BROOKS, Co-partners, Doing Business as R. S. BROOKS & SON, Respondents, v. THE WESTERN UNION TELEGRAPH COMPANY, a Corporation, Appellant

No. 1429

Supreme Court of Utah

May 14, 1903

Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.

Action to recover damages alleged to have been occasioned by the failure of the defendant to transmit messages. From a judgment in favor of the plaintiffs, the defendant appealed.

REVERSED.

George H. Fearons, Esq., and Lindsay R. Rogers, Esq., for appellant.

The telegrams were written upon a printed form containing certain terms, and were signed by the sender. This amounted to an agreement that they should be sent according to such terms. One of the terms being that the telegraph company would not be liable for damages in any case where the claim was not presented in writing within sixty days after the message was accepted for transmission, is neither against law unreasonable nor contrary to public policy. Respondents having failed to present such claim within the stipulated period, or at all, the court erred in not instructing the jury (as appellant requested) to find a verdict of no cause of action. Wolf v. Western Union Tel. Co., 62 Pa 83, cited with approval and followed by the Supreme Court of the United States in Southern Express Co. v. Caldwell, 21 Wall. 264; Lewis v. Great Western Railway. 5 Hurl. & N. 867; Beal v. South Devon Railway, Id. 883; Beasley v. Western Union Tel. Co., 39 F. 181; Findlay v. Western Union Tel. Co., 64 F. 459; Young v. Western Union Tel. Co., 65 N.Y. 163; Heiman v. Western Union Tel. Co., 57 Wis. 562; Cole v. Western Union Tel. Co., 33 Minn. 227; Russell v. Western Union Tel. Co., 57 Kan. 230; Western Union Tel. Co. v. Dunfield, 11 Col. 335; Western Union Tel. Co. v. Yopst, 118 Ind. 248; Sherrill v. Western Union Tel. Co., 109 N. Car. 527; Lester v. Western Union Tel. Co., 84 Tex. 313; Western Union Tel. Co. v. Fairbanks, 15 Bradw. (Ills.) 601; Massengale v. Western Union Tel. Co., 17 Mo.App. 259; Western Union Tel. Co. v. Way, 83 Ala. 542; Western Union Tel. Co. v. Dougherty, 54 Ark. 221; Hill v. Western Union Tel. Co., 85 Ga. 425; Aiken v. Western Union Tel. Co., 5 S. Car. 358; Manier v. Western Union Tel. Co. (Tenn.), 29 S.W. 732; Clements v. Western Union Tel. Co. (Miss.), 27 So. 603; Edson v. Ins. Co., 35 La. Ann. 353; Kirby v. Western Union Tel. Co. (S. Dak.), 65 N.W. 37.

Respondents signally failed to show or attempt to show the market value of the horses, or that the price ($ 9) at which they sold them to Engenoen was a fair price or the best price under the circumstances they could obtain. In cases of executory contracts for the purchase or sale of personal property ordinarily the proper measure of damages is the difference between the contract price and the market value of the goods at the time when the breach occurs. Western Union Tel. Co. v. Hall, 124 U.S. 444 (456); Hadley v. Baxendale, 9 Exc. 341; Warren v. Robison, 25 Utah 205; Rockwood v. Allen, 7 Mass. 254; Ferrer v. Beale. 1 Ld. Raym. 692; Allison v. Chandler, 11 Mich. 542; Griffin v. Colver, 16 N.Y. 494; Buckley v. Buckley, 12 Nev. 423; Mason v. Hawes, 52 Conn. 12; Page v. Sumpter, 53 Wis. 652; Goodbar v. Lindsley, 51 Ark. 380; Dexter v. Spear, 4 Mason 115; Walker v. Smith, 1 Wash. C. C. 152; United States v. Smith, 94 U.S. 214; Milwaukee Etc. R. Co. v. Arms, 91 U.S. 489; 1 Sutherland on Damages, sec. 12.

H. H. Henderson, Esq., for respondents.

The defendant does not plead that the claim of the plaintiff was not presented to the defendant within sixty days after the messages were sent. If the defendant relied upon the defense that the claim of plaintiffs was not presented to it within sixty days, he should set out the fact and should have proved it. Sherrill v. Western Union Tel. Co., 109 N.C. 527, 14 S.E. 94; Western Union Tel. Co. v. Linney, 28 S.W. 238; Martin v. Sunset Tel. Co., 18 Wash. 261, 51 P. 376; Encl. of Pleading and Practice, vol. 21, page 522; Western Union Tel. Co. v. Smith, 26 S.W. 216.

McCARTY, J. BASKIN, C. J., and BARTCH, J., concur.

OPINION

McCARTY, J.

The respondents were partners engaged in buying and selling horses in the States of Utah and Wyoming, with their principal place of business at Ogden, Utah. On the 24th day of September, 1900, they had a band of horses of 281 head at Green River, Wyo., which they had bargained to sell to one Searcy at the agreed price of $ 11 per head, the horses to be delivered and paid for at Green River. Respondent B. B. Brooks was to keep R. S. Brooks, who had the horses in charge informed when Searcy would arrive at Green River to receive and pay for the horses. On September 23, 1900, B. B. Brooks delivered to appellant for transmission over its lines from Ogden to Green River, a distance of about 201 miles, the following telegraphic message: "Ogden, Utah Sept. 23, 1900. R. S. Brooks, Green River, Wyo. Searcy there Monday noon or Tuesday morning sure. Get letters. H. Engenoen wants buy. Meet you. Price eleven. B. B. Brooks."

On September 24th, B. B. Brooks delivered to appellant the following telegraphic message for transmission:

"RUSH. Ogden, Utah. Sept. 24, 1900. R. S. Brooks, Green River, Wyo. Searcy arrives Green River 3 a. m.; did not get anything Idaho. B. B. Brooks."

Neither of these messages reached their destination. R. S. Brooks, on September 24th called at appellant's office at Green River, and inquired if there were any messages there for him, and was informed by the operator that there were none. He called again on the 25th, 26th, and 27th, and each time was informed there were no messages for him. Defendant in its answer admitted that the messages in question were delivered to it at the time and place alleged in plaintiff's complaint, and that the tolls and fees for their transmission were paid by respondents, but alleges that the messages were accepted by defendant subject to the terms and conditions printed on the back of the blanks used by it upon which the messages were written, which terms and conditions were understood by respondents. These terms and conditions, so far as material in this case, are as follows: "To guard against mistakes or delays, the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one half the regular rate is charged in addition. It is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery of any unrepeated message, beyond the amount received for sending the same." It is admitted that the messages in question were unrepeated. At the conclusion of the testimony the defendant requested the court to instruct the jury to return a verdict in favor of plaintiffs for nominal damages only, on the ground that the evidence failed to show that the plaintiffs had been damaged in any substantial sum. The court refused to give the instruction asked for by defendant, but directed a verdict in favor of the plaintiffs in the sum of $ 562, this being the difference in the price for which plaintiffs had bargained to sell the horses to Searcy and the price for which they were sold. Defendant appeals.

Appellant challenges the judgment on two grounds: (1) That appellant is not liable because the claim sued on was not presented within sixty days after the messages were filed in the company's office for transmission, as provided by the terms printed upon the backs of the printed forms in use by the company for the receiving and transmission of messages, with which terms and forms respondents were familiar. (2) That the court erred in not instructing the jury to return a verdict for nominal damages only.

There is no merit whatever to appellant's first contention. The defense that the claim was not presented within sixty days after the messages were filed with the company for transmission, being new matter, should have been specially pleaded in order to enable appellant to avail itself of it, and, having failed to so plead it, the question cannot now be raised in this court for the first time. This rule is so well settled that we deem it unnecessary to cite authorities in support of it; and, furthermore, even if it were a good and valid defense, which is not altogether free from doubt, but which it is not necessary for us to determine at this time, there is not one word of testimony in the record that even tends to show that the claim was not so presented.

It was also claimed by counsel for appellant in his oral argument that there was nothing on the face of the messages that indicated their nature or importance, and that therefore it cannot be presumed that appellant or its agents, at the time the messages were received for transmission, had in contemplation the damages that would necessarily and directly result to respondents because of any failure or neglect to promptly transmit and deliver them. In other words, that appellant, when it received the messages, was not advised that they referred to the sale of a band of horses, and in case of non-delivery of the message the sale would not take place, and that damages would arise therefrom. The rule contended for by counsel for appellant has been followed by many of the courts of last resort. The reason assigned for invoking this rule is, in substance, that it would be unjust to hold a company liable for damages incurred because of the negligent and incorrect transmission or non-transmission of a message which does not disclose on its face the nature and importance thereof, as the company could have no means of knowing or estimating what the probable damage resulting from such...