Cahn v. Western Union Tel. Co.

• Decision Date: 07 December 1891
• Citation: 48 F. 810
• Parties: CAHN v. WESTERN UNION TEL. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

48 F. 810

CAHN v. WESTERN UNION TEL. CO.

United States Court of Appeals, Fifth Circuit.

December 7, 1891

E. H. Bristow, for plaintiff in error.

T. L Bayne, Geo. Denegre, and Y. L. Bayne, Jr., for defendant in error.

Before PARDEE, Circuit Judge, and LOCKE and BRUCE, District Judges.

BRUCE J.

This is a suit brought in the court below by the plaintiff, who is appellant here, against the defendant telegraph company appellee, for damages for an alleged breach of contract and duty on the part of defendant in failing to deliver in due time a telegraphic message from plaintiff to his brokers Latham, Alexander & Co., in New York city. The message was in these words:

'COLUMBUS, MISS., Feb. 20th, 1890.

'To Messrs. Latham, Alexander & Co., New York, N.Y.' Sell 200 Tennessee Coal and Iron. (Signed) E. CAHN.'

Plaintiff avers in his complaint--

'That said message was delivered to and received by the agent or operator of the defendant at its office in Columbus, Miss., on or about 7 o'clock P.M., on Thursday, the 20th day of February, 1890; * * * that, anticipating an early, rapid, and heavy decline in the value and price of the stock of the Tennessee Coal & Iron Company, and desiring to sell 200 shares of said stock before the decline began, with a view of purchasing later on the same number of shares when the price and value thereof had reached a much lower figure, thereby realizing the difference in the market value thereof at the time of sale and repurchase, and knowing that Latham, Alexander & Co. held said stock, and would sell the same on his account, repaying themselves out of the money of plaintiff in their hands, and would, at the option of the receiver or purchaser, deliver, before a quarter past two o'clock on same day, said stock certificate and power irrevocable in the name of witness, or guarantied by a member of the New York Stock Exchange, or a friend represented at the exchange, residing or doing business in New York, or by transfer of said stock as provided by the constitution and rules of the New York Stock Exchange, plaintiff delivered said message to the defendant, to be transmitted to New York, to be delivered to the said Latham, Alexander & Co.; that, if said message had been transmitted and delivered in due time, the said brokers would have made the sale on the 21st day of February, at $73 per share.'

But plaintiff avers--

'That said message was not promptly transmitted and delivered as agreed, but by the gross negligence of defendant's servants and operatives in charge of the same it was delayed, and not delivered until the 28th day of February, 1890, when said stock had fallen in price to, and was selling in the market at, $55 per share, thus taking several times longer for its transmission and delivery than it required in due course of mail from Columbus, Miss., to New York city; and that the cause of the delay and non-delivery of said message, plaintiff avers, was negligence of the defendant's operators and servants. * * * Wherefore plaintiff sues and demands judgment for $3,451.66, and costs.' To this declaration there are several pleas: (1) The general issue, not guilty. (2) That the message mentioned in the declaration was a night message; and that plaintiff failed to present claim for damages to defendant company within 30 days, as required by the regulations of the company. (3) Defendant sets up contract with plaintiff that no claim for damages should be valid unless made within 30 days after the message was sent, and that the plaintiff failed to present his said claim. (4) Defendant sets up contract that sender of message should not claim damages beyond a sum equal to ten times the amount paid for the transmission of the message, and pays into court the sum of five dollars,-- amount of its alleged liability. (5) That said defendant denies that said plaintiff had in the possession of said Latham, Alexander & Co., or in the possession of any one else, subject to their control, 200 shares of the stock of the Tennessee Coal & Iron Company, at the time of the sending of said message; and avers the fact to be that it was the intention of the plaintiff that said brokers, Messrs. Latham, Alexander & Co., should pretend to sell the amount of stock so named in telegram to be delivered or subject to delivery on the 21st day of February, 1890; but the real intent of all the parties to said transaction was to speculate on the rise or fall of said stock, without any intention of selling or delivering the same, but, when called for, to settle the difference between the contract price and the market price on the day when called for,-- that is to say, a settlement on margins. Wherefore said defendant says that said transaction was illegal and void, and this it is ready to verify. Replications are filed to second and third pleas; issue joined in fifth plea; issue, in short, by consent to replication to the third plea. The case came on for trial before a jury on the issues presented on the pleadings, and, after hearing the testimony, plaintiff filed his motion for a peremptory instruction to the jury charging them that they shall find a verdict for the plaintiff for the sum to which he is entitled on the facts in testimony, which motion, after argument by counsel pro and con, was by the court overruled and refused, to which plaintiff then and there excepted; whereupon the defendant filed its motion for peremptory instruction to the jury charging them that they shall find a verdict only for the amount of the telegram on the facts in testimony, and, after argument, the court gave the instruction found in the record. The charge is, in effect, 'that the plaintiff cannot recover; the claim for damages is too remote, uncertain, and speculative, and will not be allowed by you in your verdict. ' To the giving of the charge the plaintiff excepted. The verdict of the jury was for 32 cents and three-fourths of a mill, to which the plaintiff excepted, and tenders his bill of exceptions, embodying all the testimony and the rulings and order of the court.

The assignment of errors, as far as necessary to be here stated are: The court erred in giving the instruction to the jury as to the measure of damages in the cause. The circuit court erred in refusing to give the special instruction asked by plaintiff. The question, then, is, did the court err in instructing the jury on the trial of the cause that the claim made by the plaintiff for damages is too remote and speculative to be allowed by the jury in its verdict? A number of cases are cited by the counsel for appellee to sustain the ruling of the court, among which is the case of Telegraph Co. v. Hall, 124 U.S. 444, 8 S.Ct. 577. In that case the message was to buy, and not to sell, as in the case at bar. It was dated December 9, 1882, and should have reached the sendee at Oil City, Pa., at 11:30 A.M. that day, but the message was not delivered until the exchange had closed for the day, so that Hall could not purchase the petroleum ordered by the plaintiff; and that at the opening of the board the next day the price...