C. B. Nash Company v. Western Union Telegraph Company

• Decision Date: 16 April 1915
• Docket Number: 18081
• Citation: 152 N.W. 387,98 Neb. 210
• Parties: C. B. NASH COMPANY, APPELLEE, v. WESTERN UNION TELEGRAPH COMPANY, APPELLANT
• Court: Nebraska Supreme Court

152 N.W. 387

98 Neb. 210

C. B. NASH COMPANY, APPELLEE, v. WESTERN UNION TELEGRAPH COMPANY, APPELLANT

No. 18081

Supreme Court of Nebraska

April 16, 1915

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.

AFFIRMED.

Brogan & Raymond, for appellant.

Crofoot & Scott and W. C. Fraser, contra.

BARNES J. LETTON, ROSE and SEDGWICK, JJ., not sitting.

OPINION

BARNES, J.

Appeal from a judgment of the district court for Douglas county, in an action for damages for a failure to transmit and deliver a telegram. The facts alleged in plaintiff's petition may be briefly stated as follows: At 10:10 o'clock A. M., on Thursday, January 30, 1908, the plaintiff, the C. B. Nash Company, delivered to the Western Union Telegraph Company at its main office in the city of Omaha the following telegram "Shearson, Hammill & Co., 71 Broadway, New York, N. Y. Outbreak tapestry preternatural. Collect. (Signed) The C. B. Nash Company." Across the face of the telegram was written in red ink "Rush." The message when translated reads: "Sell 300 American Smelting & Refining Company common stock at 68 1/8." At the time when the message was delivered to the telegraph company, the plaintiff had on deposit with Shearson, Hammill & Company 300 shares of the stock designated, and wished its brokers to sell the same as directed by the telegram. Had the defendant promptly transmitted and delivered the message, Shearson, Hammill & Company would have sold the stock at a price equal to or greater than that named. On February 1, 1908, plaintiff telegraphed Shearson, Hammill & Company to ascertain if the sale had been made, and was informed that the order to sell had not been received. On the 3d of February, 1908, plaintiff sent them a duplicate of the original message, which was received by them on the 5th day of February, 1908. Meanwhile the price of said stock had declined to $ 62.50 a share, at which price the stock was sold, and plaintiff was damaged, by the failure of the telegraph company to promptly transmit and deliver the message, in the sum of $ 1,986, for which, with interest, the plaintiff prayed judgment. The defendant's answer was a general denial. On the trial the court limited the measure of damages to the difference between the price at which the stock would have sold on January 30, 1908, had the telegram been duly transmitted and delivered, and the price at which the plaintiff could have sold the stock on February 3, 1908. The jury returned a verdict for the plaintiff for $ 600, with interest amounting to $ 199, or a total of $ 799. Judgment was rendered on the verdict, and the defendant has appealed.

It appears that before the introduction of the evidence the defendant objected to the introduction of any testimony, because the petition failed to state a cause of action, the message in question being in cipher, and because its contents were not disclosed or made known to defendant. The objection was overruled. At the close of all of the evidence the defendant moved the court to direct the jury to return a verdict in its favor, claiming that there was no evidence before the court tending to show that defendant had notice of the nature and extent of the business covered by the telegram which would make defendant liable for the special damages claimed. The motion was overruled. The court also refused to instruct the jury that defendant would be liable for nominal damages only. These rulings constitute the defendant's assignments of error.

It appears that at the trial L. F. Crofoot, a witness for plaintiff, testified that he was the secretary, treasurer and director of the C. B. Nash Company; that the company maintained its office in the Omaha National Bank building since January 1, 1907; that the defendant company has maintained its office in the basement of the same building; that the business of the plaintiff, among other things, was the purchase and sale of stocks listed on the New York stock exchange; that such transactions were carried on by telegrams, wholly or partly in cipher, and open, sent and received by the Western Union Telegraph Company, through its office in the Omaha National Bank building; that such telegrams were sent to and received by Henry Clews & Company, Clark Dodge & Company, Shearson, Hammill & Company, W. P. Bonbright & Company, all New York stock brokers; that the plaintiff company used the same cipher code in messages sent to and received by Shearson, Hammill & Company, and the object in using the code was to save tolls; that Henry Clews & Company is one of the oldest brokerage houses in New York, and has had an extensive business for many years; that Clark Dodge & Company have also been in business for many years and are prominent brokers; that Shearson, Hammill & Company have been in business a shorter period, but are prominently known as stock brokers; that the method of sending the telegrams was to have them written in the plaintiff company's office and sent down to the telegraph company's office for transmission, or delivered to a messenger of the telegraph company.

W. W Umsted testified that for many years he had been manager of the Western Union Telegraph Company in Omaha; that the telegraph company and the C. B. Nash Company maintained offices in the same building; that, as manager of the telegraph company, he had charge of all of the business transacted in its general office in that building; that three or four clerks received the messages filed by the public for transmission at the counter in the general office; that he knew the C. B. Nash Company, and the business in which it was engaged; that its interests were large, and that it was frequently sending and receiving business messages through the telegraph company's main office; that he knew L. F. Crofoot was in charge of the plaintiff's business, and knew the C. B. Nash Company's interests were varied, and that telegrams sent and received by it related to business transactions, but he did not know whether it referred to smelter, or street railway, or to what it referred; that he could not say that any of plaintiff's messages did not relate to business transactions; that he knew that more or less of plaintiff's messages, received and sent, related to business transactions of importance;...