Clark Mfg. Co v. Western Uniontel. Co. Supreme Court Of North Carolina
| Decision Date | 09 March 1910 |
| Citation | 152 N.C. 157,67 S.E. 329 |
| Court | North Carolina Supreme Court |
| Parties | CLARK MFG. CO. v. WESTERN UNIONTELEGRAPH CO. Supreme Court of North Carolina. |
WESTERN UNIONTELEGRAPH CO.
Telegraphs and Telephones (§ 67*)—Delayed Messages—Damages.
Plaintiff's agent in New York, already having a bid of "eight one-half for two fifty drills, " sent to plaintiff a telegram asking plaintiff if it would accept such price if the agent "could get an offer, " and requesting an answer. Plaintiff answered that it would accept the price if the agent could do no better. Both telegrams were delayed, and the order was lost. Held, that the telegrams on their face did not import a contract, but merely afforded authority for the making of one, and the telegraph company, not having been informed of any special damage from delay, was not liable for the profits and interests lost by plaintiff's failure to consummate the sale, but was only liable for nominal damages.
[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. § 65; Dec. Dig. § 67.*]
Appeal from Superior Court, Wake County; W. R. Allen, Judge.
Action by the Clark Manufacturing Company against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Civil action to recover damages for failure to deliver a telegram within a reasonable time, heard by his honor W. R. Allen, judge, at fall term, 1909 of the superior court of Wake county, upon exceptions to the report of a referee, to whom the cause had been referred by consent. The judge overruled all the defendant's exceptions to the report and fully confirmed the same. To this judgment the defendant duly excepted and appealed. Among other exceptions overruled by the superior court is defendant's exception to the twenty-second finding of the referee, which is as follows: "(22) That the plaintiff, the Clark Manufacturing Company, because of the aforesaid delays in transmitting and delivering the telegrams and messages referred to, and set out in findings 5 and 13 above, which delays were caused by the negligence and want of ordinary care on the part of the defendant, has been damaged in the sum of $556.10 made up as follows:
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|Difference between 8 1/2 cents (being amount of bona fide offer) and 8 1|$415|
|/4 cents (price at which sold) per yard for 106, 000 yards of drill |00 |
|cloth | |
|------------------------------------------------------------------------|----|
|Loss of interest from December 21, 1905, to February 20, 1906, on |141 |
|$14,110, the amount for which said cloth would have sold at 8 1/2 cents |00 |
|per yard | |
|------------------------------------------------------------------------|----|
|Total |$556|
| |00" |
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Womack & Pace and Philip H. Busbee, for appellant.
C. B. Denson and Walter Clark, Jr., for appellee.
From the findings of the referee it appears that about 10 o'clock a. m. December 21, 1905, the Textile Commission Company filed in the office of the defendant, at New York, for transmission to the Clark Manufacturing Company, at Jonesboro, N. C., the following telegram: ." Which telegram was delivered to the Clark Manufacturing Company at Jonesboro, between 2:40 and 3 o'clock p. m. on the same date. Prior to 3:15 p. m. the Clark Manufacturing Company filed with the defendant, at Jonesboro, the following message, addressed to the Textile Commission Company, at New York: Which telegram was delivered to the Textile Commission Company after 5 o'clock p. m. on same day. Upon a consideration of this case, and after most careful examination of the full briefs filed by counsel for both parties, we are unanimously of the opinion that the learned judge of the superior court erred in overruling the defendant's exception to the finding of the referee as to the quantum of damage.
Owing to the indefinite and uncertain character of the telegraphic correspondence, we think, upon the great weight of authority, both text-writers and judicial precedents, that the plaintiff is entitled to recover only nominal damage, to wit, the charges paid for the telegram from the Textile Commission, in case it has paid them or incurred them. It seems to be an almost universal principle of the law of damage, imbedded in the jurisprudence of this country and Great Britain, and adopted in this state by unanimous decisions in many cases, that under any contract to transmit a message by telegraph, as under any other contract, the damages for a breach must be limited to those which may be fairly considered as necessarily arising, according to the usual course of things, from the breach of the very contract sued upon, or which both parties must reasonably have understood and contemplated when making the contract as likely to result from its breach. This principle is recognized in all the cases cited by the learned counsel for plaintiff, and in hundreds of others in addition. It is founded upon the rule laid down in the familiar English case of Hadley v. Baxendale, 9 Exch. 345, which has been quoted and approved by the Supreme Court of the United States and practically all the other judicial tribunals of this country. Telegraph Co. v. Hall, 124 U S. 444, 8 Sup. Ct. 577, 31 L. Ed. 479; Primrose v. Telegraph Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883; Wood, Mayne on Damages, § 13, and notes; Joyce on Damages, § 1403; Sutherland on Damages, § 50. The rule as stated by Joyce is that, if the sender of a message does not notify the company of its importance, or of special damages which may result from a breach of the contract, and the message does not from its language convey to the company any such knowledge, only such damages may be recovered as could have been reasonably anticipated from the language of the message, and there can be no recovery for damages arising out of such special circumstances. Section 1403, and notes, citing a great array of decided cases. The rule is applied by this court in actions against telegraph companies for negligence in transmitting and delivering messages. Williams v. Telegraph Co., 136 N. C. 84, 48 S. E. 559, and cases cited. In his well-considered opinion in this case Mr. Justice Walker quotes at length from the Supreme Court of Massachusetts an extract, showing the importance and Inherent justice of this rule. Applying this established principle to the facts of this case, it is quite clear that the plaintiff is not entitled to recover the special damages claimed.
It is not contended that the defendant had any notice of any special circumstances, or any other knowledge of the nature of the transaction, or of the consequences of delay, other than such as is afforded by the telegram itself. It is apparent that the message gives no indication of a contract to sell, or that one would be entered into immediately upon receipt of the answer, and the answer itself is not a definite acceptance of a...
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