Postal Telegraph Cable Co. v. Ford

• Citation: 23 So. 684,117 Ala. 672
• Parties: POSTAL TEL. CABLE CO. v. FORD.
• Decision Date: 01 June 1898
• Court: Supreme Court of Alabama

23 So. 684

117 Ala. 672

POSTAL TEL. CABLE CO. v. FORD.

Supreme Court of Alabama

June 1, 1898

Appeal from city court of Montgomery; John G. Winter, Judge.

Action by D. W. Ford against the Postal Telegraph Cable Company. Judgment for plaintiff, and defendant appeals. Reversed.

J. M Falkner and Ray Rushton, for appellant.

Graham & Steiner, for appellee.

BRICKELL C.J.

This is an action, by the sendee of a telegram against the telegraph company, to recover damages resulting from failure to promptly deliver the telegram at the address designated by the sender. It is an action ex contractu, for breach of the contract alleged to have been made by the telegraph company with the sender "for the benefit and as the agent of plaintiff"; not ex delicto, for breach of duty growing out of the contract, or otherwise arising. Wilkinson v Moseley, 18 Ala. 288; Insurance Co. v. Randall, 74 Ala. 179. In Telegraph Co. v. Adair (Ala.) 22 So 73, it is said: "In the cases decided by this court in which the sendee of the telegram was plaintiff, the complaint showed that the plaintiff, either directly or per alium, was a party to the contract; and the opinions seem to concede the proposition that, if such relationship did not exist, an action for the breach of the contract could not be maintained by the sendee." The right of the sendee to maintain an action for damages against the telegraph company for failure to deliver the message, or for error in the message delivered, has been frequently before the courts. In England it is held that the sendee, in the absence of such facts as make him a party or privy to the contract, has no right of action against the telegraph company. Playford v Telegraph Co., L. R. 4 Q. B. 706; s. c. Allen, Tel. Cas. 437; Dickson v. Telegraph Co., 2 C. P. Div. 62; s. c. 3 C. P. Div. 1; Gray, Com. Tel. § 65. In thus holding, the English courts apply to telegraph cases the principle established by them, that no cause of action arises in favor of a stranger to a contract because of a breach of duty growing out of the contract. Winterbottom v. Wright, 10 Mees. & W. 107. In this country there is a lack of harmony both in the conclusions reached by different courts, and in the reasoning upon which the conclusions are based. Gray, Com. Tel. § 65 et seq., and authorities cited; Pepper v. Telegraph Co., 87 Tenn. 554, 11 S.W. 783, and 10 Am. St. Rep. 699; Shingleur v. Telegraph Co., 72 Miss. 1030, 18 So. 425; s. c. 48 Am. St. Rep. 604, and notes. Whether the sendee has or has not the right to recover in tort for failure to deliver a telegram, or for delay in its delivery, without averring or proving a contract to which he is a party or privy, it is clear, upon principle,-and the proposition is supported by the former decisions of this court, and by the decisions of courts of other jurisdictions,-that, without such averment and proof, he cannot recover when his action is based upon contract, and seeks damages resulting from its breach. Telegraph Co. v. Adair (Ala.) 22 So. 73, and cases there cited; Shingleur v. Telegraph Co., 72 Miss. 1030, 18 So. 425, and 48 Am. St. Rep. 604; Telegraph Co. v. Dubois, 128 Ill. 248, 21 N.E. 4, and 15 Am. St. Rep. 109; Gray, Com. Tel. §§ 74, 75.

Having reached the conclusion, as above stated, that the present action is ex contractu, it becomes necessary to consider whether the evidence discloses such a relation between the telegraph company and the sendee of the message as gives a right of action in the latter. The tendency of the evidence introduced on the trial is that, at the time the message was delivered to the telegraph company at Mobile, one McLean was a member of the general council of the city of Mobile, and chairman of a committee having in charge the paving of a certain street; that the plaintiff, who was then in Montgomery, was a civil engineer, having experience in superintending the laying of pavements of the kind contemplated to be laid in the city of Mobile; that, previous to the sending of the telegram, McLean, representing the city of Mobile, had had negotiations with the plaintiff looking to the employment of plaintiff to supervise the laying of the pavement; that they had agreed upon the price to be paid plaintiff if his services were needed; and that the telegram in controversy was sent by McLean to plaintiff in pursuance of an understanding had between them to the effect that McLean was to notify plaintiff if he decided to employ him. The telegram read: "If possible, come to Mobile to-night. If not, come on next train. Wire answer." McLean and plaintiff both were examined as witnesses on the trial. The plaintiff is silent as to whether McLean acted as his agent in sending the telegram; and McLean says: "Mr Ford never appointed me his agent;" and again, in answer to another question: "I sent the telegram to Mr. Ford himself. The telegram was a notice of a consummation of an agreement...