Cherokee Tanning Extract Co v. Western Union Tel. Co

• Decision Date: 18 December 1906
• Citation: 143 N.C. 376,55 S.E. 777
• Court: North Carolina Supreme Court
• Parties: CHEROKEE TANNING EXTRACT CO. v. WESTERN UNION TELEGRAPH CO.

55 S.E. 777

143 N.C. 376

CHEROKEE TANNING EXTRACT CO.

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina.

Dec. 18, 1906.

Telegraphs and Telephones—Operation-Delivery of Messages—Actions for Damages.

A company wrote to plaintiff saying: "Kindly advise us by wire Monday if you can use about 1, 500 creosote barrels between now and January 1st at 95 cents each delivered in car load lots." On Monday morning plaintiff filed with defendant telegraph company a reply: "We accept your offer 1, 500 barrels as per yours of the 7th." The message was not delivered until after another company had purchased the barrels. Held that, as the company's letter was a mere inquiry and plaintiff's acceptance was not in the terms of the inquiry or offer, no final contract was completed, and the telegraph company was liable only for nominal damages.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, §§ 72, 73.J

Appeal from Superior Court, Cherokee County; McNeill, Judge.

Action by the Cherokee Tanning Extract Company against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed, and partial new trial ordered.

This is an appeal from a judgment in favor of the plaintiff, for damages alleged to have been sustained through the negligence of the defendant in failing to transmit and deliver promptly a certain telegram.

Merrick & Barnard and F. H. Busbee & Son, for appellant.

Dillard & Bell, for appellee.

BROWN, J. There is no dispute as to the material facts. The evidence shows: That on the 7th day of November, 1903, an agent of the Standard Oil Company at Wilmington, N. C, wrote to the plaintiff at Andrews, N. C, a letter containing among other things, this request: "Kindly advise us by wire Monday if you can use about 1, 500 creosote barrels between now and January 1st at 95 cents each delivered in car load lots." That the plaintiff received this letter on Monday, November 9tb, and at 7:30 p. m. of that day and filed with the defendant, at its Andrews office, a message addressed to the Standard Oil Company, Wilmington, N. C, and reading as follows: "We accept your offer 1, 500 barrels as per yours of the 7th." This message was delivered to the sendee at 10:36 a. m., November 10th. At the same time it wrote to plaintiff, the oil company addressed a similar letter to the Brevard Tanning Company and others. The latter company purchased the barrels by telegram received by the oil company shortly before plaintiff's message. The plaintiff claims substantial damage. Defendant requested the court to charge that plaintiff was entitled to recover nominal damages only, to wit, the price paid for the telegram. We think this instruction should have been given.

Damages are measured in matters of contract not only by the well-known rule laid down in Hadley v. Baxendale, 9 Ench. 341, but they must not be the remote, but the proximate, consequence of a breach of contract, and must not be speculative or contingent. Unless the reply of plaintiff by wire to the letter of the oil company created a contract between the two for the sale and delivery of 1, 500 barrels at 95 cents each, then plaintiff can recover only nominal damages for any other damages would necessarily be purely speculative or contingent. The language of Brannon, J., in a similar case in West Virginia is appropriate to this: "But the trouble facing the plaintiff in this case is that there was no final contract between the parties, but only a proposal for a contract, and there can be no contract without both a proposal and its acceptance. The failure of the telegram company did not cause the breach of a consummate contract; it only prevented one that might or might not have been made." Beatty v. Tel. Co. (W. Va.) 44 S. E. 309. See, also, Hosiery Co. v. Tel. Co. (Ga.) 51 S. E. 290 and Wilson v. Tel. Co, (N. C.) 52 S. E. 153. The offer must be distinct as such, and not merely an invitation to enter into negotiations upon a certain basis. Wire Works v. Sorrell, 142 Mass. 442, 8 N. E. 332; Beaupre v. Tel. Co., 21 Minn. 155; 24 Am. & Eng. Enc. 1029, and cases cited.

Again, the offer must specify the specific quantity to be furnished, as a mere acceptance of an indefinite oher will not create a binding contract McCaw Mfg. Co. v. Felder, 115 Ga. 408, 41 S. E. 664; 24 Am. & Eng. Enc. 1030, note 1, and cases cited. "The offer must be one which is intended of itself tocreate legal relations or acceptance. It...