Lewis v. Holmes

• Decision Date: 02 March 1903
• Docket Number: 14,343
• Citation: 34 So. 66,109 La. 1030
• Court: Louisiana Supreme Court
• Parties: LEWIS et al. v. HOLMES

34 So. 66

109 La. 1030

LEWIS et al. v. HOLMES

No. 14,343

Supreme Court of Louisiana

March 2, 1903

Rehearing denied March 30, 1903.

Appeal from Civil District Court, Parish of Orleans; Thomas C. W Ellis, Judge.

Action by Anna M. Lewis and others against D. H. Holmes. Judgment for plaintiffs, and defendant appeals. Affirmed.

McCloskey & Benedict, for appellant.

John Wagner and Benjamin Rice Forman, for appellees.

OPINION

PROVOSTY, J.

On the 6th of April, Mrs. Anna Lewis, living at Yoakum, Tex telegraphed to D. H. Holmes, the most fashionable millinery establishment of the city of New Orleans, as follows:

"Can you make me five dresses by the seventeenth? Answer quick." And D. H. Holmes answered: "Yes, can make dresses by seventeenth, as wanted."

Mrs Lewis immediately shipped to D. H. Holmes, by express, the materials for the dresses, which had been bought from the D. H. Holmes establishment a few days before. On the 8th of April she wrote to D. H. Holmes, explaining that the dresses were for her daughter, who was to be married on the 19th, and that the dresses would have to be at Yoakum by the 17th, and insisting that D. H. Holmes let her hear from them at once. On the 12th she telegraphed to D. H. Holmes: "Wire me in regard to dresses at once." On the 13th D. H. Holmes telegraphed to her: "Will ship wedding dress to-morrow, balance on the 19th." On the same day she telegraphed to D. H. Holmes: "Daughter leaves 19th. Must have dresses before. Ship immediately. High water may delay arrival." On the same day she telegraphed to the firm of Hoen & Duth, in New Orleans, her friends: "See Holmes. Hurry up my work. Lula leaves 19th. Must have dresses immediately." D. H. Holmes answered by mail to the effect that they could not ship the dresses before the 19th, but that, if Mrs. Lewis preferred, they could ship them to the bride's destination. On the 14th D. H. Holmes shipped the wedding dress. It reached Yoakum on the 16th. The young lady was to marry a man of wealth and of high social standing, and she herself belonged to the same high social rank. On her wedding tour she was to visit the city of Mexico, and other cities, where entertainments in her honor were planned, and the dresses had been ordered in prevision of these functions. Coming from the leading millinery establishment of the leading city of the South, the dress should have been a thing of beauty, delightful to a young bride to wear. It proved to be four inches too short in front, and, to use the words of the young lady: "It was just like wearing a short rainy-day skirt, with an immense train behind." At this discovery the expectant bride was overcome by disappointment and chagrin. She had to be held up while her mother and two friends undertook to rectify the garment, and she took to her bed. What could be done was done, but the gown continued to be one inch too short in front, and the bride was ashamed to wear it, though forced by necessity to do so.

Mrs. Lewis telegraphed at once to D. H. Holmes: "Skirt four inches short. Length should be forty-three inches. See to others." The next morning (the 17th) she telegraphed: "Do not ship other dresses until further notice." But on the evening of the same day she telegraphed: "Send dresses to Yoakum not later than 19th, without fail." On the next day (the 18th) D. H. Holmes mailed the following letter:

New Orleans, April 18th, 189

"Mrs. A. M. Lewis, Yoakum, Texas -- Dear Madam: Through your telegram of recent date we learned to our surprise that the dress was found four inches too short. We followed measurements furnished by yourself in making it forty-two inches, hence we do not feel ourselves responsible for the mistake. As the telegram states the skirt is four inches too short we will require for the other dresses forty-six inches. The quantity of material furnished will not make the dresses and the definite instructions which were expected have not been received, so we have stopped work until we hear from you more definitely concerning them.

"We enclose bill of telegrams, as we are not responsible for the payment of same.

"Respectfully,

D. H. Holmes."

On the 25th Mrs. Lewis wrote to D. H. Holmes, telling him that if the dresses were not forthcoming they would be left on his hands; and on the 28th D. H. Holmes returned the dress goods as they had been sent to them, without their having been even unfolded.

The bride, it seems, was counting absolutely upon having the dresses, and found herself entirely unprovided for the entertainments incident to her wedding tour and to her arrival at the home of her husband in Louisville, Ky. For want of suitable dresses, she had to forego these entertainments, and to decline all invitations in the several cities she visited, and in fact to cut short her bridal tour; all to her great chagrin and mortification and humiliation. This suit is brought to recover damages for the breach of the contract to make and deliver the dresses.

The only excuse offered by D. H. Holmes for not having fulfilled the contract is that contained in the letter of the 18th transcribed above, namely, that, as the wedding dress was 42 inches, and was 4 inches too short, the other dresses would have had to be made 46 inches, and that there was not enough material to make them of that length; in other words, that the telegram misled him. But the fact is that what misled him was his own erroneous impression that the wedding dress had been made 42 inches, when it had been made only 38 inches. His plain duty, under the circumstances, was to use the telegraph for obtaining further information. Besides, the telegram was received by him on the 16th, by which date the dresses should have been about ready for shipment, whereas the scissors had not yet gone into their materials. We think the contract was violated, and that...