Pope v. the Western Union Tel. Co..

• Decision Date: 31 August 1881
• Citation: 9 Bradw. 283,9 Ill.App. 283
• Parties: JOHN D. POPEv.THE WESTERN UNION TELEGRAPH COMPANY.
• Court: United States Appellate Court of Illinois

9 Ill.App. 283

9 Bradw. 283

JOHN D. POPE

v.THE WESTERN UNION TELEGRAPH COMPANY.

Appellate Court of Illinois, Fourth District.

August Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. AMOS WATTS, Judge, presiding. Opinion filed October 6, 1881.

Mr. CYRUS HAPPY, for appellant; that plaintiff is not bound to show affirmatively that the parties to whom the message was sent were present ready to receive it upon delivery, cited Tyler v. W. U. Tel. Co. 60 Ill. 421; Same case, 74 Ill. 421.

The question of variance between allegation and proof cannot be raised by instruction: Roberts v. Graham, 6 Wall. 578; Curry v. The People, 54 Ill. 263; Vasey v. Bd. Trustees, 54 Ill. 59.

Mr. G. B. BURNETT and Messrs. IRWIN & SPRINGER, for appellee; that an instruction offered without evidence to support it should be refused, cited Strauss v. Minzesheimer, 78 Ill. 492; Graves v. Shoefelt, 60 Ill. 462; Winnishick Ins. Co. v. Schueller, 60 Ill. 465; Bowen v. Rutherford, 60 Ill. 41; Sangamon Ins. Co. v. McKeen, 60 Ill. 167; Durham v. Goodwin, 54 Ill. 469; Lawrence v. Hagerman, 56 Ill. 68; Aurora v. Gillett, 56 Ill. 132; Latham v. Roach, 72 Ill. 179; Van Buskirk v. Day, 32 Ill. 260; Morgan v. Peet, 32 Ill. 281; Lycoming Ins. Co. v. Jackson, 83 Ill. 302; Twining v. Martin, 65 Ill. 157; Meyer v. Mead, 82 Ill. 19.

In case of a failure to deliver a message, the measure of damages should be so much of the loss actually sustained as a person familiar with business of the kind mentioned in the message would be able to anticipate from its terms as a probable consequence of failure to deliver it; and if the terms of the message do not convey its full value, the operator must be informed of the value: Shearman & Redfield on Negligence, § 605; U. S. Tel. Co. v. Gildersleeve, 29 Md. 232; Hadley v. Baxendale, 9 Exch. 341; Fletcher v. Taylor, 33 Eng. L. & Eq. 187; Griffin v. Colver, 16 N. Y. 489; Landsberger v. Magnetic Tel. Co. 32 Barb. 530.

The question of variance may be raised by instruction: Greenup v. Stoker, 2 Gilm. 688; Hulick v. Scovil, 4 Gilm. 159; Pitman v. Gaty, 5 Gilm. 189; Rockford Ins. Co. v. Nelson, 65 Ill. 415.

Speculative damages and anticipated profits are not allowable in this class of cases: Squire v. W. U. Tel. Co. 98 Miss. 232; Graham v. Tel. Co., 10 Am. Law Reg. 319; Behm v. Tel. Co. 11 Chicago Legal News, 276; Bank of Barnesville v. Tel. Co. 11 Chicago Legal News, 157; Olmstead v. Burk, 25 Ill. 86; Green v. Williams, 45 Ill. 206.

CASEY, P. J.

This was an action on the case brought by appellant in the Madison County circuit court against appellee for a failure on the part of appellee to promptly forward and deliver the following message:

“ST. LOUIS, Mo., Dec. 7, 1875.

To ARNOLD & ARNOLD, Attorneys, Atlanta, Georgia:

Money will be with Perino Brown by twelve; don't sell.

+------------------------+
                ¦(Signed)¦JOHN D. POPE.” ¦
                +------------------------+
                

The declaration alleges that defendant was and is a telegraph company, owning wires, and engaged in transmitting messages for compensation between St. Louis, Mo., and Atlanta, Georgia; that it was the duty of defendant to transmit and deliver messages promptly between persons at said places; that it received the above copied message from plaintiff on the day of its date, and in consideration of $1.00 paid therefor, agreed to transmit said message and deliver it as addressed in the shortest possible time; that said message was delivered to defendant at 9:35 A. M. on Dec. 7, 1875, and defendant declared it should be transmitted and delivered before 10 o'clock A. M. of said day; that the importance of said message was explained to defendant; it was intended to prevent a sale of certain real estate advertised under execution to be sold by the sheriff between the hours of 10 A. M. and 4 P. M. on the day said message was sent; that if transmitted and delivered promptly it would have prevented said sale; that owing to the carelessness and negligence of defendant, said message was not delivered until 11:20 o'clock A. M. on said day, at which time said sale was being made by the sheriff, and that said message was not delivered in time to prevent the consummation of said sale, as it would have done if delivered sooner.

It was further alleged that plaintiff had owned the real estate to be sold, and had agreed to exchange it with one Patillo for $2,500 in money, certain Texas lands, one land certificate and one account, all described in the declaration and alleged to be of the value of $14,990. The Atlanta real estate was worth $11,000. Plaintiff had, prior to the agreement to exchange, mortgaged it to the American Life Ins. Co. for $5,000. The $2,500 cash paid by Patillo was applied on this mortgage, leaving $2,500 still unpaid. This last amount plaintiff had agreed to pay, and until he had paid it, Patillo's deed to the land to be received in exchange was to be left in escrow with Hillyer & Bro., of Atlanta. On payment of the balance due on the mortgage, Hillyer & Bro, were to deliver Patillo's deed to plaintiff. The sale made by the sheriff of the Atlanta property cut off the title which plaintiff was to give Patillo to exchange, and prevented plaintiff from ever getting Patillo's deed to the Texas lands, by reason whereof plaintiff alleges damages, etc.

The pleas of defendant were:

1. That the defendant was not guilty.

2. That the message was sent on a blank containing a printed regulation, which defendant called a condition and agreement, to the effect that unless the sender required and paid for the repeating of said message, the company should in no event be liable for greater damages than the sum paid for transmitting the message; that plaintiff did not require said message to be repeated; that he only paid $1.00 for its transmission, and could recover no more than $1.00 for defendant's failure; that said condition and agreement were made in Missouri, where they were legal and valid.

3. That said message was sent on a blank containing a printed regulation to the effect that no damages should be recovered unless written claim therefor was made within sixty days after such damages had been sustained, and that plaintiff had made no written demand within sixty days, as required by said regulation.

Plaintiff replied to the second plea--

1. Denying that he agreed that defendant should not be liable, etc., unless said message was repeated.

2. Denying that such an agreement would have been valid under the laws of Missouri, and

3. Denying that he had any knowledge or notice of any conditions or restrictions printed on the blank whereon said message was written, and denying that he assented to any such condition, restriction or regulation.

To the third plea plaintiff replied--

1. Denying that the message was sent subject to any condition or agreement that no damages should be recovered unless written demand therefor was made within sixty days, and

2. Averring that defendant had waived any right to written claim, and had accepted verbal notice of claim in lieu thereof.

Defendant demurred to the third replication to the second plea, and the demurrer was overruled.

The case was tried before a jury at March term of said court, resulting in a verdict against appellant. The case is brought to this court by appeal.

Of the errors assigned, it is deemed not necessary or important to discuss any except the second, which is, that the court gave improper instructions on the part of defendant.

The first instruction is as follows: “The court instructs the jury,...