Hise v. W. Union Tel. Co.

• Citation: 113 N.W. 819,137 Iowa 329
• Parties: HISE v. WESTERN UNION TELEGRAPH CO.
• Decision Date: 19 November 1907
• Court: United States State Supreme Court of Iowa

137 Iowa 329

113 N.W. 819

HISE

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of Iowa.

Nov. 19, 1907.

Appeal from District Court, Washington County; B. W. Preston, Judge.

Action at law to recover damages for failure to deliver telegram. There was a directed verdict and judgment for defendant, and plaintiff appeals. Reversed.S. W. and J. L. Brookhart, for appellant.

H. M. Eicher and J. Carskadden, for appellee.

WEAVER, C. J.

The wife of the plaintiff owned a tract of land in Iowa which he alleged she authorized him to sell at a price of not less than $5,760, and to retain as commission all which he might realize from such sale over and above the sum named. After this authority had been conferred upon plaintiff, he went to Madison, S. D., for a time, leaving an agency to find a suitable purchaser for the land with the real estate firm of B. F. Dixon & Co. The evidence tends to show that on October 10, 1903, and while plaintiff was still at Madison, Dixon delivered the following message to the defendant company to be transmitted over its lines: “To Aaron Hise, Creamery, Madison So. Dak. Am offered sixty two hundred for your eighty March first, Answer at once. B. F. Dixon.” There was a creamery at Madison, but plaintiff was not, and never had been, employed there. He was in fact employed at an egg packing establishment some distance from the creamery. The message was delivered in due time at the defendant's Madison office, but the name of the addressee had by some error been changed to “Aaron Sire,” instead of “Aaron Hise.” Inquiry by a messenger at the creamery failed to develop any person to whom a delivery of the message could be made, and the employés in the telegraph office claim to have made other search without avail. Plaintiff had no knowledge of the existence of the telegram until about October 20, 1903, when he received a letter from Dixon inquiring the reason of his silence concerning the proposed sale, and meanwhile it appears that the customer found by Dixon had recanted, and the sale failed of consummation. After the occurrences which we have recited, and since the beginning of this suit, plaintiff made sale of the land at $80 per acre, realizing a profit of $200 over that which he would have received had he sold upon the offer reported to him by Dixon. He alleges, however, in his petition, and testifies as a witness, that, if the telegram had been delivered promptly, he would have authorized Dixon to complete the sale, by which he would have realized a profit of $440. The person to whom the proposed sale was to be made testifies that he was then ready, able, and willing to take and pay for the land at the price named. At the close of the testimony, defendant moved for a directed verdict in its favor, on the ground that the plaintiff had failed to show any damage resulting to him by reason of error in the telegram, and because the evidence disclosed without contradiction that the telegram was misdirected to the creamery at Madison, instead of to the egg...