Lucas v. W. Union Tel. Co.

• Citation: 109 N.W. 191,131 Iowa 669
• Parties: LUCAS v. WESTERN UNION TELEGRAPH CO.
• Decision Date: 19 October 1906
• Court: Iowa Supreme Court

131 Iowa 669

109 N.W. 191

LUCAS

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of Iowa.

Oct. 19, 1906.

Appeal from District Court, Woodbury County; J. L. Kennedy, Judge.

Action for damages occasioned by delay in transmitting a telegram. Verdict was directed for defendant, and the petition dismissed. Plaintiff appeals. Reversed.M. J. Sweeley and F. E. Gill, for appellant.

Wright & Call, for appellee.

LADD, J.

Plaintiff sought to recover profits he would have made in an exchange of real estate but for the negligence of defendant in failing to promptly transmit a telegram. Verdict was directed for defendant on two grounds: (1) There was no proof of damages; and (2) the delay in transmitting the message did not occasion the loss. Plaintiff resided at Anthon, Iowa, and was engaged in the business of “buying and selling lands and exchanging real property.” He had been negotiating for some time to exchange property at Shelby, this state, with William Sas of Dexter, Iowa, and, in the evening of November 11, 1904, received a letter, written and mailed by Sas two days previous, making the following proposition: “I will put in my store property here with the extra piece of ground back of it just as I showed you last spring and $6,500.00 in cash, any encumbrance now on property to be deducted from above amt. and assumed by me. If above is satisfactory please make out your contract and send down. I will make a $1,500.00 deposit until the papers can be made out and abstract brought down, if I get the building I expect I can make a better deal with Jacobs. My man here takes my stock between 5th and 10th of January. I will have to know at once as I have other deal pending.” At 9:10 o'clock the next morning plaintiff handed defendant's agent at Anthon this telegram: “November 12, Anthon, Iowa, 1904. To William Sas, Dexter, Iowa. Just received letter. Offer accepted. Send contract to-day. S. R. Lucas.” It was not sent until 4:41 o'clock p. m., and was delivered to Sas the same evening at three minutes after 6 o'clock. The latter immediately wrote plaintiff that he had put another party off until 3:30 o'clock p. m. of that day, and, not hearing from him, had negotiated an exchange with another. Evidence was offered tending to support the statement. The jury might have found from the evidence that the Dexter property was worth at least $2,500 and that the Shelby property did not exceed in value $5,500, leaving a profit on the deal of not less than $4,500. The defect in the proof, relied on by defendant, was that plaintiff failed to show any interest in the prospective profit. He testified, without objection: “I was acting for myself in making the deal. * * * The profits of the deal, if any, belonged to me.” He was also asked: “Mr. Lucas, you said on cross-examination that you made a deal of this same property at Shelby for the person who then owned it at the time of this proposed deal. You may now state whether you had from him a deed to the property to enable you to close the deal with Mr. Sas. A. I did.” The profit to be derived from the exchange, if made, was proven, and this, according to the testimony of plaintiff, belonged to him, and, as he had a deed from the owner to enable him to close the deal, we think he had established his right to recover. Possibly, had there been objection to this evidence, it might have been necessary, in order to make out a case, to prove the ownership of the property at Shelby, and plaintiff's authority to handle it, but, in the absence of any objection, we think his statements, although in the nature of conclusions of fact, established his claim to the profits had they been realized. The trial judge seems to have been of this opinion but held that the contract was completed in fact and therefore that plaintiff suffered no damages by reason of the delay.

The proposition of an exchange was made to plaintiff by letter. In committing it, properly addressed to the mails for transmission, the post office became the agent of Sas to carry the offer, he taking the chances of delays in the transmission. Mactier's Adm'rs v. Frith, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262; Adams v. Lindsell, 1 B. & Ald. 681; Averill v. Hedge, 12 Conn. 424, 9 Cyc. 294. Having sent the proposition by mail he impliedly authorized its acceptance through the same agency. Such implication arises (1) when the post is used to make the offer and no other mode is suggested, and (2) when the circumstances are such that it must have been within the contemplation of the parties that the post would be used in making the answer. Tuttle v. Iowa State Traveling Men's Association (Iowa) 104 N. W. 131. The contract is complete in such a case when the letter containing the acceptance is properly addressed and deposited in the United States mails. Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511, and note; Brewer v. Horst-Lachmund Co. (Cal.) 60 Pac. 418, 50 L. R. A. 240, and extended note; Dunlop v. Higgins, 1 H. L. C. 381; Household Ins. Co. v. Grant, 41 L. T. N. S. 298, 9 Cyc. 295. This is on the ground that the offerer, by depositing this letter in the post office, selects a common agency through which to conduct the negotiations, and the delivery of the letter to it is in effect a delivery to the offerer. Thereafter the acceptor has no right to the letter and cannot withdraw it from the mails. Even if he should succeed in doing so the withdrawal will not invalidate the contract...