Mills v. Western Union Tel. Co

• Decision Date: 14 June 1905
• Citation: 123 Ga. 216,51 S.E. 290
• Parties: RICHMOND HOSIERY MILLS. v. WESTERN UNION TELEGRAPH CO.
• Court: Georgia Supreme Court

123 Ga. 216

51 S.E. 290

RICHMOND HOSIERY MILLS.

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of Georgia.

June 14, 1905.

1. Judgment on Demurrer — Conclusiveness.

A judgment on demurrer not excepted to is conclusive between the parties as to the points necessarily decided.

[Ed. Note.—For cases in point see vol. 30, Cent. Dig. Judgment, § 1167.]

2. Same.

The overruling of the demurrer which was filed in the case at bar was a conclusive determination that a right of action existed, but did not adjudge what was the measure of damages.

3. Telegraph Company—Agent of Sender —Liabilities.

In Brooke v. Western Union Telegraph Co., 46 S. E. 826, 119 Ga. 694, it was held that, "In the transmission of a telegraphic message the telegraph company is the agent of the sender, to whom, and not to the company, the recipient must look for damages arising out of error in the transmission."

[Ed. Note.—For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, § 34.]

4. Same—Mistake in Telegram—Action by Recipient.

If a telegram is sent containing a proposal to sell goods, but by mistake of the telegraph company, as delivered, it does not state the proposal correctly, the receiver cannot recover from the telegraph company compensatory damages on the ground that, if the message had been correctly transmitted so as to contain the proposal as intended by the sender, it would have been accepted in that form and certain benefits or profits would have accrued to the receiver therefrom; it not appearing what actual loss, if any, resulted to the receiver from such error.

[Ed. Note.—For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, §§ 64, 72.]

5. Same—Nominal Damages.

Under the facts of this case, a judgment by the presiding judge, to whom the case was submitted without a jury, in favor of the plaintiff, against the defendant, for nominal damages, was not erroneous.

(Syllabus by the Court.)

Error from Superior Court, Walker County; W. M. Henry, Judge.

Action by the Richmond Hosiery Mills against the Western Union Telegraph Company. Judgment for plaintiff for nominal damages, and it brings error. Affirmed.

The Richmond Hosiery Mills, a corporation having its principal office at Rossville, in this state, brought suit against the Western Union Telegraph Company, alleging, in brief, as follows: Plaintiff is engaged in the manufacture of cotton hosiery, and uses large quantities of cotton yarns and other fabrics. Finding it desirable to purchase a considerable amount of such yarns, plaintiff addressed a letter on September 6, 1900, to Holland & Webb, a firm of commission merchants in New York City, requesting them to give to it a price on yarns. On September 10th they replied to said letter by telegram. As written and delivered to the company for transmission, the telegram read: "Your letter sixth. Sixteen and one half cents best our Eastern Mill will take, same quantity as you refer to, delivery commencing in October. Let us hear from you at once. It is a low figure, and mill will not sell under present market for January delivery." This telegram was carelessly and incorrectly transmitted, so that when delivered to the plaintiff, instead of reading "delivery commencing in October, " it read, "delivery commencing in December." There were other minor changes, but none material. As soon as this telegram was received, and acting on it in good faith, plaintiff telegraphed to Holland & Webb to purchase of them 100, 000 pounds of yarn for December delivery, accepting the offer in the words and figures of the message as received. But Holland & Webb declined to fill the order for December delivery. The difference between October and December was not essentially material to plaintiff, and, if it had known that the real time of delivery as written in the original telegram was October, it would have ordered the yarn for that month, instead of for December. Plaintiff avers that Holland & Webb would have filled the order if it had been made for October, but that the time of delivery was material to them, and they would not accept an order for December. Before plaintiff discovered, by the exercise of due diligence and care, that errors had been made in the message, the price of cotton yarns of the kind ordered by it had materially advanced, whereby it lost a large sum of money, and by the failure to effect said purchase lost trade, and had to discharge a large number of its hands and curtail production. By reason of these facts, it alleged that it was damaged in the sum of $2,000.

The defendant demurred to the declaration, and the presiding judge overruled all the grounds of the demurrer, except the fifth, which he sustained, and which was as follows: "The damage alleged to have been suffered by the plaintiff on account of loss of trade, discharge of hands, and curtailment of production are too remote to sustain a recovery." No bill of exceptions, pendente lite or otherwise, was filed to this ruling. Defendant admitted the sending of the telegram, and that as delivered it was not the same as when sent, but denied that it was guilty of any negligence in regard to the matter. It denied that plaintiff telegraphed to Holland & Webb to purchase of them 100, 000 pounds of yarn for December delivery, and alleged that they were mere commission merchants, that they had no yarns on hand and had none to sell, and whether they could buy the 100, 000 pounds of yarn depended on the condition of the market at the time they received the telegram from the plaintiff in reply to their telegram. It denied that Holland & Webb were in a condition to fill the order if it had been made for October, and alleged that they depended on their ability to negotiate with some Eastern mill; and whether or not such mill would have sold the yarn at the price quoted by Holland & Webb is a mere matter of opinion, and not a proper foundation on which to base a right of recovery. It denied that plaintiff had suffered any injury on account of the mistake in the telegram. Other allegations of the answer need not be set out. It is unnecessary to state the evidence in detail. The telegram referred to above was shown to have been sent by Holland & Webb, and the plaintiff sent the following reply: "Telegram received. Enter us for one hundred thousand pounds at 16 1/2, deliveries beginning in December. Please confirm your acceptance bywire. Clinch this for us." Holland & Webb replied by telegram as follows: "Your two telegrams received; mill will not accept your offer, but will accept one hundred thousand pounds, delivery in December, seventeen and a quarter cents." Plaintiff replied: "Can't raise our offer of yesterday; think mill should protect our offer of sixteen and a half; we accepted same immediately." It sent another telegram saying: "Can't raise our offer of yesterday. We accepted same immediately." And another later, saying: "We look to you for one hundred thousand pounds sixteen and a half; we accepted your offer made Sept. 10th, have written."

The vice president and general manager of the plaintiff testified that be first found out that there was an error in the telegram from Holland & Webb dated September 10th, about September 23d, when he received a letter from them. When asked: "Did you make any effort to purchase this yarn? and what was the condition of the market after making this discovery?" he replied: "Everything was demoralized; it was the week of the Galveston flood, and the market rose on cotton three or four cents a pound, and it was a very difficult matter to get an order placed at any price, and we didn't succeed immediately in placing an order. We placed an order subsequently for an inferior quality of yarn at two cents advance." He did not state how large an order the plaintiff placed at that advance, or how much actual loss accrued to it. He further stated: "The delivery was not material to me. I say I would have accepted the yarn for October delivery just the same as I would for December. I was the purchasing agent for the plaintiff." Evidence was also introduced showing the price of yarns on September 16th, 17th, 18th, 20th, and 22d to have been 19 3/4 cents per pound for October delivery, and on October 12th, 20 /14 cents per pound; that the highest price between September 10th and 22d was 19 3/4 cents per pound for October delivery, and the highest price between September 10th and October 12th was 20 1/4 cents per pound, and that "the controlling price of yarns was around twenty cents during the above period of time."

One of the firm of Holland & Webb testified that he sent the telegram involved in this litigation, and received an answer, the purport of which was that they should enter the plaintiff's order for a quantity of yarn, about 100, 000 pounds as per their telegram, but stating that it was for delivery in December instead of October, as they had written the telegram. If plaintiff had accepted the offer for yarn to be delivered in October instead of December, Holland & Webb would have filled it. They refused to do so solely on the ground of being unable to meet the conditions of delivery, the difference being that they could deliver in October and could not deliver in December. Holland & Webb were commission brokers and sold the output of the mill. They did not control the mill nor its entire output.

On September 18th, Holland & Webb sent a telegram, saying: "Telegram received. Have done nothing. You wanted December delivery, and mill would not accept." On September 10th they did not have 100, 000 pounds of yarn of the quality and character described in the telegram. In fact, they did not have any of it on hand. They contemplated placing the order with a mill as a commission transaction.

The case having been submitted to the presiding judge without a jury, he found in favor of the plaintiff, against the defendant, $1 as nominal damages, and costs of suit. The assignment of error was in the following language: "To the amount of...