Kerns & Lorton v. Western Union Telegraph Co.

• Decision Date: 03 November 1913
• Citation: Kerns & Lorton v. Western Union Telegraph Co., 160 S.W. 556, 174 Mo. App. 435 (Mo. App. 1913)
• Court: Missouri Court of Appeals
• Parties: KERNS & LORTON v. WESTERN UNION TELEGRAPH CO.

160 S.W. 556

174 Mo. App. 435

KERNS & LORTON v. WESTERN UNION TELEGRAPH CO.

Kansas City Court of Appeals. Missouri.

November 3, 1913.

1. TELEGRAPHS AND TELEPHONES (§ 38) — DAMAGES FOR DELAY — EVIDENCE.

In an action against a telegraph company for damages for delay, where it appeared that plaintiff's Friday telegram to buy potatoes was properly addressed to one Millay, that it was changed to Mills, and though the addressee was known to defendant's agent at the receiving point, and though delivery should have been made Saturday, delivery was made by mail and did not get it to him until Monday evening, too late for business, there was a sufficient showing of negligence to uphold a judgment for plaintiff.

2. TELEGRAPHS AND TELEPHONES (§ 67) — ACTION FOR DAMAGES — SPECULATIVE DAMAGES.

Where it was shown by plaintiff that, if its telegram had been delivered to the addressee, potatoes could and would have been bought at 50 cents per bushel and shipped at a freight rate of 30 cents, and that such potatoes could have been sold at $1.10 a bushel, damages based upon the difference between such cost and the selling price were not speculative.

3. TELEGRAPHS AND TELEPHONES (§ 52) — REDUCTION OF LOSS — DELAY IN DELIVERY OF TELEGRAM.

While one whom another has injured must make reasonable effort to save himself, yet, where the price which the sender of a telegram would have been compelled to pay for potatoes on a subsequent day was higher than what he would have paid had his telegram not been delayed, there was no necessity for him to go through the form of actually buying in order to ascertain his loss.

4. TELEGRAPHS AND TELEPHONES (§ 70) — ACTION FOR DAMAGES — MEASURE OF DAMAGES.

The measure of damages for delay in the delivery of a telegram to buy merchandise is the difference between the price that the sender agreed to pay therefor and the sum which he would have been compelled to pay at the same place, in order, by due diligence, to have purchased a like quantity and quality of merchandise, and, where the particular facts justify it, the difference between the price the sender was to pay if delivery had been prompt and the price he afterwards actually did pay.

5. DAMAGES (§ 40) — LOSS OF PROFITS.

Profits which are a matter of guess are too problematical as a measure of damages, but they may be brought within the limits of reasonable certainty and thus become the basis of an action.

6. TELEGRAPHS AND TELEPHONES (§ 67) — ACTIONS FOR DAMAGES — MEASURE OF DAMAGES — PROFITS.

Where there was sufficient evidence outside of the terms of the message itself to show that potatoes were to be bought by the sender of the message for resale on arrival, and that they had contracted a sale of one-half of the entire lot at a certain price, the loss of profits was sufficiently certain to afford a proper measure of damages.

7. TELEGRAPHS AND TELEPHONES (§ 38) — ACTION FOR DAMAGES — NOTICE OF CIRCUMSTANCES AND EFFECT.

A telegram reading: "If freight rate does not exceed fifty cts. per hundred buy five or six hundred bushels of potatoes at fifty cents, if good. Make draft on us with bill of lading attached. Wire as soon as bought" — sent by a business firm, sufficiently disclosed that it was a purchase for a resale at a profit and the reasonable probability of loss in case of its own negligence, so that upon delay the telegraph company was liable for substantial damages.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by Kerns & Lorton against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Fred S. Hudson, of Chillicothe, for appellant. Weatherby & Frank, of Kirksville, for respondents.

ELLISON, J.

Plaintiffs' action is for damages alleged to have accrued to them by reason of the failure of defendant to deliver a telegram they sent from Kirksville, Mo., to E. O. Millay at Romeo, Mich. A jury was waived and a trial had by the court which resulted in a finding and judgment for plaintiffs in the sum of $180.

The telegram was delivered to defendant's agent at Kirksville, on Friday, November 10, 1911, at 7 o'clock in the evening, and should have been delivered, in ordinary course, at Romeo on Saturday morning, November 11th. But it was not delivered until after business hours on the evening of November 13th, when Millay received it through the mail. It was in the following words: "If freight rate does not exceed fifty cts. per hundred buy five or six hundred bushels of potatoes at fifty cents, if good. Make draft on us with bill of lading attached. Wire as soon as bought. Kerns & Lorton."

Plaintiffs' claim is that Millay could and would have bought potatoes on the 11th at 50 cents per bushel and could and would have obtained a freight rate to Kirksville of 30 cents per bushel. They also claimed that had the potatoes been bought and shipped at that price and rate they could and would have sold them at $1.10, thereby making a profit of 30 cents per bushel.

Defendant attacks the sufficiency of the evidence to sustain these claims. Any substantial evidence in that respect will suffice to uphold the judgment in plaintiffs' favor and an examination of the record clearly shows that character of proof. Though the telegram was properly addressed by plaintiffs to Millay, it was changed to Mills. And though Millay was known to defendant's agent at Romeo, and though delivery should have been made Saturday, no personal delivery was made at all and the mail did not get it to him...