Manier & Co. v. W.U. Tel. Co.

• Decision Date: 23 February 1895
• Citation: 29 S.W. 732,94 Tenn. 442
• Parties: MANIER et al. v. WESTERN UNION TEL. CO.
• Court: Tennessee Supreme Court

29 S.W. 732

94 Tenn. 442

MANIER et al. v. WESTERN UNION TEL. CO.

Supreme Court of Tennessee.

February 23, 1895

Appeal from chancery court, Davidson county; Andrew Allison Chancellor.

Bill by Manier & Co. against the Western Union Telegraph Company to recover loss occasioned by defendant failing to deliver in time a message advising complainants that property of their debtors was being attached. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

J. C McReynolds, for appellants.

Jas. S Pilcher and Lemuel R. Campbell, for appellee.

SNODGRASS C.J.

The complainant sued the defendant for failure to deliver in time a certain message sent complainant from Starkville, Miss., by its lawyer at that place, advising complainant that Hollinshed & Co., merchants at Starkville, and debtors of complainant, were having their property attached by creditors, and requesting that complainant should wire its lawyer the amount of its claim and the names of the individual members of its firm. To this message quick answer was asked, saying whether or not complainant desired to attach. This message was delivered to defendant's agent at Starkville about 9 o'clock a. m., December 25, 1891. It was addressed to complainant at its business house on the Square, in Nashville. The messenger boy took the dispatch to the place of address, and found the house closed. Mr. Carter of Dunbar, Carter & Co., a neighboring firm of reputable merchants, told the boy to leave the dispatch with him, which he did, Mr. Carter first paying the charges. The dispatch did not reach the complainant until between 6 and 7 p. m. of the same day. As soon as practicable (about an hour thereafter) the complainant answered. The reply message was delivered at Starkville about 9:30 a. m. of the next day. The complainant's counsel, on receipt of the message, brought suit against Hollinshed & Co., attaching its property. Before this attachment was levied, however, other attachments had been levied in favor of other creditors, and, finally, after judgment for the full amount, complainant only obtained about the sum of $385 on its debt of $1,920. This bill was filed November 19, 1892, to recover of defendant, as damages, the difference between the amount finally realized by the attachment and the amount of the complainant's debt. The bill was answered, proof taken, and on the hearing the chancellor dismissed the bill. The complainant appealed, and assigned errors. The complainant insists that the decree was erroneous because of the fact that it had shown negligence in the delivery of these messages, and loss to the amount of the claim not satisfied by the attachment, it being made to appear that Hollinshed & Co. and the members of that firm are insolvent, and that the loss of the debt resulted from the failure to attach in time. The defendant denies all these propositions. It insists that it was not negligence that caused the delay of either message, and that the complainant's attachment was levied on property sufficient to have paid the debt; that that property was disposed of in the attachment suits by agreement of the creditors, to which defendant was not a party, and that, therefore, it is not liable for the loss. It further insists that it is not liable, because the claim for damages was not presented in writing within 60 days after the sending of the message, according to the terms of the contract contained in the blank upon which the telegram sent was written by complainant's counsel, and on which or a similar blank it was delivered to the complainant. It makes other questions not necessary now to be considered.

Taking these propositions in order: It appears in evidence that there was a negligent delay in delivering the first message, and not in delivering the second. Goods to the value of nearly $10,000 were attached. They were sold by agreement of the parties. The sheriff who made the sale shows in his deposition that "the total of the receipts for the goods were $6,505.65. Of this amount, $3,655.65 were sold at retail at 10 per cent. above cost, and the remainder of the stock was sold in bulk for $2,850, at a loss of 60 per cent."; that is, a loss of $4,300. In other words, goods worth $7,150 were sold by consent of the parties for $2,850, and, even under such sale, Manier & Co. received about the sum of $385. So it appears this firm would have been next paid off. Had the goods brought anything like their value, complainant's debt would have been paid in full. Complainant did not choose to make the goods, which it got attached, bring its debt, nor were they so sold as to affect a judicial determination that their value was what they brought. Complainant has not, therefore, proven that the failure to deliver this message in time caused the loss.

But assume that it had, it remains to inquire whether other defenses stated are effectual to prevent complainant from obtaining relief sought. The contract, as already shown, provided that the defendant telegraph company was not liable for damages in any case where the claim was not presented in writing within 60 days after the sending of the message. Such a stipulation is reasonable, and has been repeatedly upheld by the courts. Wolf v. Telegraph Co., 62 Pa. St. 83; Young v. Telegraph Co., 34 N.Y. Super. Ct. 390; Express...