Gist v. Western Union Tel. Co.

• Decision Date: 11 October 1895
• Citation: 23 S.E. 143,45 S.C. 344
• Parties: GIST v. WESTERN UNION TEL. CO.
• Court: South Carolina Supreme Court

23 S.E. 143

45 S.C. 344

GIST v. WESTERN UNION TEL. CO.

Supreme Court of South Carolina

October 11, 1895

Appeal from common pleas circuit court of Newberry county; Aldrich Judge.

Action by Nathaniel Gist against the Western Union Telegraph Company for damages caused by its failure, through negligence, to deliver a message relating to a cotton-future contract. From a judgment for plaintiff, defendant appeals. Reversed.

The following was the complaint in the action:

"The plaintiff would respectfully show unto the court:

"(1) That the defendant is a body corporate and politic, and as such, is capable of suing and being sued in said state.

"(2) That the said defendant is engaged in transmitting messages by way of telegraphy from Newberry courthouse, in said state and county, to the city of New York, in the state of New York, and from the said city of New York to the said Newberry courthouse, receiving pecuniary compensation for their services, from the parties sending and receiving said messages.

"(3) That on the 15th day of January, 1894, the plaintiff, engaged the defendant to transmit to the said city of New York the following message to the firm of Roddy & Watts, composed of John T. Roddy and David C. Watts, and doing business in said city: 'Close out April sold twenty-six, and buy two Marches,'--which meant to buy three hundred bales of cotton to be delivered in April, 1894, and two hundred bales to be delivered in March, 1894, in the city of New York; these purchases being made to protect himself from loss, by reason of other transactions in cotton.

"(4) That the said firm of Roddy & Watts did on the said 15th day of January, 1894, receive the said message, and bought for the plaintiff two hundred bales of cotton, to be delivered to the plaintiff in the city of New York in the month of March, 1894, at the price of eight and 24/100 dollars per hundred pounds, and three hundred bales to be delivered to the plaintiff in the same city in the month of April, 1894, at the price of eight and 32/100 dollars per hundred pounds.

"(5) That, immediately after the said purchase, the said Roddy & Watts, on the said 15th day of January, 1894, in the said city of New York, delivered to the defendant, to be transmitted to the plaintiff over its telegraph wires, the following message, to wit: 'Bought 3 Aprils 32, and 2 Marches 24, steady,'--and

which said message was signed by Roddy & Watts, but was not delivered to the plaintiff until after the close of business hours on the 18th day of January, 1894, although it could and should have been delivered to the plaintiff at Newberry, S. C., during business hours on the 15th day of January, 1894; and that the defendant knew that the said firm of Roddy & Watts were cotton brokers doing business in the said city of New York, and engaged in the buying and selling of cotton for parties desirous of speculating on the same on the New York Cotton Exchange located in the city of New York. The defendant well knew that the plaintiff dealt in buying and selling cotton through cotton brokers, subject to the rules governing said Cotton Exchange.

"(6) That it was the duty of the defendant to have transmitted said last-mentioned message to the plaintiff on said 15th day of January, 1894, and, by its utter negligence and carelessness, failed to do so on that day; and plaintiff did not receive said message until after the close of business hours on the 18th day of January, 1894.

"(7) That, immediately after the said purchase for the plaintiff, cotton began to decline in price, and the plaintiff, in order to protect himself against loss from other purchases made by him in the same manner, sold an equal amount of cotton to be delivered in the said city of New York, thereby indemnifying himself against any loss, and would have pursued the same course in reference to said purchase had the defendant promptly delivered the said last-mentioned message.

"(8) That if the defendant had transmitted to the plaintiff promptly the said message of Roddy & Watts, sent on the 15th day of January, 1894, the plaintiff would thereby have been enabled to protect himself from any loss, by selling, as he did in the other said cases, an equal amount of cotton to be delivered in the said city of New York, and would then have avoided the loss sustained by him by reason of the negligence of the defendant, which loss was sustained in the manner aforesaid, in the sum of fifteen hundred and twenty dollars.

"(9) That, by reason of the said negligence of the defendant, it has damaged the plaintiff in the sum of fifteen hundred and twenty dollars, in that said cotton continued to decline until the months of March and April, 1894, and after the 19th day of January, 1894, to wit: On the 22d day of January, 1894, five hundred bales of cotton was sold for the plaintiff to protect said loss, which amounted on said last-mentioned day to fifteen hundred and twenty dollars. In this way, three hundred bales to be delivered in April, 1894, and two hundred bales to be delivered in March, 1894, in New York City, under the same rule; and cotton continued to decline, and if the sales had been made after the 22d day of January, 1894, for said months, the loss would have been still greater. And that, even if the said five hundred bales of cotton had been sold on the 19th day of January, 1894, the said loss would have amounted to fifteen hundred and twenty dollars, which was the earliest day that the plaintiff could have protected himself after receiving the said message of Roddy & Watts.

"(10) That within sixty days after the said 15th day of January, 1894, the plaintiff notified the defendant of the said loss in writing, and demanded of the defendant that it would make good said loss, which demand was refused.

"Wherefore, the plaintiff demands judgment against the defendant for the sum of fifteen hundred and twenty dollars, with interest from the 15th day of January, 1895, and the costs of this action."

To this complaint a demurrer was interposed, and the following order overruling it entered:

"This action comes before me upon the complaint therein and a written demurrer thereto, upon the ground that it does not state facts sufficient to constitute a cause of action. The truth of every allegation in the complaint properly pleaded in so far as the issues under consideration are involved, is admitted. The complaint is quite long, and the demurrer states seven grounds of attack thereon. Neither time nor space will permit a recital, in extenso, of these pleadings, and they must be read and considered as a part of this decree.

"Omitting legal phraseology, and briefly stating the substance of the allegations to be considered, and merely for the purpose of understanding the issues raised, the complaint charges: That the defendant, a telegraph company, was engaged in sending telegraphic dispatches to and for between Newberry, S. C and the city of New York, N.Y. That 'the defendant knew' that Roddy & Watts were a firm of cotton brokers doing business in New York City, and engaged in the buying and selling of cotton for parties desirous of speculating on the same on the Cotton Exchange located in said city. That defendant well knew that plaintiff then dealt in buying and selling cotton through cotton brokers, subject to the rules governing said Cotton Exchange. That on January 15, 1894, plaintiff engaged defendant to transmit to said Roddy & Watts, in New York, the following message, signed by plaintiff, and to be sent from Newberry, S. C., viz.: 'Close out April sold twenty-six, and buy two Marches,'--which meant to buy three hundred bales of cotton delivered in April, 1894, and two hundred bales to be delivered in March, 1894, in the city of New York. That these purchases were made to protect himself from loss, by reason of other transactions. On the same date (January 15, 1894), Roddy & Watts bought the cotton as directed by plaintiff in his message to them; and immediately, on the 15th, delivered to defendant, in New York, the following message, to be delivered to plaintiff, in Newberry, S. C., to wit: 'Bought 3 Aprils 32, and 2 Marches 24, steady'. That defendant did not deliver said last-mentioned message to plaintiff, in Newberry, until after the close of business hours on January 18, 1894, although it could and should have been delivered to plaintiff, in Newberry, during business hours on January 15, 1894. That their failure to transmit and deliver said message was caused by the 'utter negligence and carelessness' of the defendant. That, by reason of said failure, plaintiff was damaged in the sum of $1,520. The complaint also alleges that on January 15, 1894, the price of cotton began to decline, and continued to do so; that plaintiff could and would have protected himself on said purchase of January 15th, by selling an equal amount of cotton, to be delivered in New York, at the time the cotton he had bought was to be delivered to him, if he had received the said telegram from Roddy & Watts at the time it should have been delivered; that on January 22, 1894, plaintiff sold 500 bales of cotton in New York, at an actual loss of $1,520; that the loss would have been the same if he had sold on the 19th; and that he was forced to sell at this loss to prevent still greater loss. The complaint, in its last analysis, means that if plaintiff had received the telegram from Roddy & Watts on January 15th, as he should have received it, and been thereby informed that his order had been executed, he could and would have sold cotton as an offset to this purchase, the price declining, and averted this loss; but that defendant's failure to deliver the telegram until the 18th kept the plaintiff in ignorance of his said purchase for three...