Kennon v. Western Union Telegraph Co.

• Court: Alabama Supreme Court
• Writing for the Court: MCCLELLAN, J.
• Citation: Kennon v. Western Union Telegraph Co., 92 Ala. 399, 9 So. 200 (Ala. 1891)
• Decision Date: 16 April 1891
• Parties: KENNON ET AL. v. WESTERN UNION TEL. CO.

9 So. 200

92 Ala. 399

KENNON ET AL. v. WESTERN UNION TEL. CO.

Supreme Court of Alabama

April 16, 1891

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

This action was brought by W. P. Kennon & Bro. against the Western Union Telegraph Company, to recover damages for the failure to deliver a telegram to the plaintiffs within a reasonable time from its sending. The facts, as alleged in the amended complaint, are that, by agreement of the plaintiffs with Mohr, Honaman & Co., merchants in the city of New York, and who were agents of the plaintiffs, the said Mohr, Honaman &amp Co. were to keep the plaintiffs posted as to the condition of the cotton market; the plaintiffs averring that they had 1,500 bales of cotton held for sale. In compliance with the said agreement, Mohr, Honaman & Co. delivered unto defendant corporation, for transmission to the plaintiffs, a certain telegram, written upon one of its blanks, which was in cipher. The meaning of this cipher telegram, as alleged in the complaint, was that, "We expect a heavy decline. Bulls getting scared. We expect receipts will soon be heavier, if the weather continues favorable. The prospects of trade are not encouraging in England. From indications around us, we advise selling at the best prices obtainable, as we think we will be able to replace to advantage after a while should you desire to do so." This message was to be delivered to the plaintiffs at Salem, Ala., and was sent on the 7th day of February, 1882. Instead of being delivered to the plaintiffs at Salem, it was missent to Selma, Ala., and was not received by the plaintiffs until the 11th day of February; and the plaintiffs aver that, by this missending and failure to deliver within a reasonable time, they suffered damages by the decline of the price of cotton from 12.60 cents per pound, on the day the message was sent, to 12.44, on the day it was delivered. They allege, too, in the complaint, that, had they received the message on the day it was sent by defendant, they would have abided by the suggestions of their agents, and have sold on that day instead of selling on the day the telegram was received. It was also averred that the message was paid for by the agents of the plaintiffs, and that the cost therefor was afterwards paid by the plaintiffs to their said agents. Defendant demurred to the amended complaint, and assigned as grounds therefor (1) that the said count fails to show that said plaintiffs, before bringing the said suit, suffered loss or damage by reason of the missending and delay in the delivery of said telegram to plaintiffs; (2) that said count fails to show that the alleged loss and damage, or any part thereof was the necessary, reasonable, or proximate result of the alleged breach of duty relied on by the plaintiffs as the cause of action; (3) that said count seeks to recover damages for the alleged negligence of defendant, and fails to show any relation between plaintiffs and defendants through which the law would imply a duty to plaintiffs for the negligent performance which is alleged as the cause of action; (4) the said count fails to show that defendant undertook to do and perform for plaintiffs a service which is alleged to be the ground of action; (5) the said count fails to show that the defendant had any knowledge of the fact that said telegram was sent at the instance and for the benefit of the plaintiffs, or that they would suffer any damage by delay caused by the negligence of defendant; (6) the said count seeks to recover for the breach of a contract, and fails to show the existence of any contract between plaintiffs and defendant; (7) the said count shows that the message alleged to have been sent is in cipher, and wholly unintelligible to defendant, and that it was not shown or made known to the defendant that a prompt delivery was necessary, or that damages would likely accrue from delay or...