Smithson v. U.S. Telegraph Co.

• Decision Date: 19 June 1868
• Citation: 29 Md. 162
• Parties: WILLIAM T. SMITHSON and WILLIAM F. OWENS v. THE UNITED STATES TELEGRAPH COMPANY.
• Court: Maryland Court of Appeals

29 Md. 162

WILLIAM T. SMITHSON and WILLIAM F. OWENS v. THE UNITED STATES TELEGRAPH COMPANY.

Court of Appeals of Maryland

June 19, 1868

APPEAL from the Court of Common Pleas.

This was an action instituted in the Court of Common Pleas of Baltimore city by the appellants, against the appellee, to recover damages for the breach of a contract to telegraph and deliver a message from the appellants, in Baltimore, to their correspondents, Manley & Company, in New York, directing the latter to sell ten thousand dollars of gold for and on account of the appellants. The declaration alleges that the message would, immediately on the receipt thereof, have been complied with by Manley & Company, but that the appellee wholly neglected to telegraph and deliver said message, and that as soon as the appellants became aware thereof, they caused ten thousand dollars of gold to be sold for and on their account, but that in the interval between the time when the message ought to have been received and acted on, and that at which they so sold, gold had greatly declined in value, and the appellants obtained a much smaller amount therefor than they would have obtained through Manley & Company, if the message had been telegraphed and delivered by the appellee, as it had contracted to do. The declaration was filed at the time of the institution of the suit, and with it, the following account verified by affidavit:

UNITED STATES TELEGRAPH COMPANY, Dr.

To W. T. SMITHSON & COMPANY.

Difference between the price for which Manley & Company would have sold $10,000 of gold for and on account of the said W. T. Smithson & Company, if said Telegraph Company had telegraphed a message in accordance with its contract, and the price obtained by said Smithson & Company therefor, being the damages resulting from the violation of said contract, viz:

Price for which said gold would have been sold by said Manley & Company, @ $132 3/4	$13,275 00
Price for which it did afterwards sell, @ $129 7/16	12,943 75
	----------
	$331 25

The writ was returnable to the second Monday of January, 1866. The appellee having been summoned, appeared by counsel, and on the 23d of January, filed several pleas, but no oath was made, to prevent the appellants from being entitled to their judgment, under the provisions of the Code. At the February rule day, which was that next succeeding the appearance of the appellee, the appellants filed their motion, in writing, asking for a judgment, because said pleas were not verified by affidavit. The Court overruled the motion, and refused to enter the judgment, and the appellants appealed from the order so doing.

The cause was argued on the merits and on a motion to dismiss the appeal, before BARTOL, C.J., NELSON, STEWART, and ALVEY, J.

John H. Thomas for the appellants.

The express provisions of the Code made it the duty of the Court to render the judgment asked for, and to assess the damages. Code of Pub. Local Laws, Art. 4, secs. 166 to 169.

The language of the Code is different from that of the Act of 1858, ch. 323, which was previously in force, and which applied only to cases in which the sum to be recovered was ascertained by the contract or fixed by law.

A plaintiff, in such a case as this, would have been entitled to his judgment, even under the Act of 1858, when it was in force. The measure of damages was fixed by law. The default ascertained the principal of the sum claimed to be due. The Court, under that Act, would have rendered judgment for the principal; but having then no power to assess damages, could not include the interest. This difficulty is now removed by the Code, and the judgment ought to have been rendered for the amount of the account and interest. Munnikuyson vs. Dorsett, 2 H. & G., 374; Boteler & Belt vs. the State, &c., 7 G. & J., 109; Keirle & Walker vs. Shriver, 11 G. & J., 405; Wilson vs. Wilson, Garn., &c. 8 Gill, 192; Birney vs. New York and Wash. Tel. Co., 18 Md. Rep., 341, Mailhouse vs. Inloes et al., 18 Md. Rep., 328; Code of Public Local Laws, Art. 4, sec. 169.

The provisions of the Code applied to the Court of Common Pleas. Code of Pub. Local Laws, Art. 4, sec. 173.

This Court has power, on reversing the judgment, to give such judgment as the Court below ought to have given, and ought, therefore, to give judgment for the amount of the account and interest. Code of Pub. Gen'l Laws, Art. 5, sec. 14; Seevers vs. Clement, 28 Md. Rep., 426.

Levin Gale for the appellee.

The appeal should be dismissed because there has been no final judgment, and therefore nothing in this case from which an appeal could be taken. Carroll vs. Bowie, 7 Gill, 35; Boteler vs. State, 7 G. & J., 112.

The case set forth in the affidavit was not a case of debt within the purview of the Act of 1864, ch. 6.

The account does not show a case of indebtedness, but, on its face, presents a claim for damages. Clark vs. Wilson, 3 Wash. C. C. R., 560; Fisher vs. Consequa, 2 Wash. C. C. R., 382.

NELSON J., delivered the opinion of the Court.

At the argument of this cause, after hearing the counsel for the appellant, the Court declined to hear the appellee's counsel, and announced as the opinion of a majority of the Court, that the motion to dismiss the appeal ought to prevail, and passed an order accordingly. The whole Court was also of opinion that the account filed in the cause, upon which the suit was brought, was not a debt within the purview of Article 4, sections 166, 167, 168 and 169 of the Code of Public Local Laws of the city of Baltimore. We now proceed to state more fully the grounds of that opinion. The judgment rendered by the Court below, was a mere interlocutory judgment, leaving the case upon the docket for final trial and adjudication as it stood before the judgment complained of, and determining...