Sparks Milling Co. v. Western Union Telegraph Co.

• Decision Date: 29 June 1911
• Docket Number: 2,940.
• Citation: 72 S.E. 179,9 Ga.App. 728
• Parties: SPARKS MILLING CO. v. WESTERN UNION TELEGRAPH CO.
• Court: Georgia Court of Appeals

72 S.E. 179

9 Ga.App. 728

SPARKS MILLING CO. v. WESTERN UNION TELEGRAPH CO.

No. 2,940.

Court of Appeals of Georgia

June 29, 1911

Rehearing Denied Sept. 28, 1911.

Syllabus by the Court.

The damages sought to be recovered were not caused by the alleged negligent conduct of the defendant telegraph company, but resulted from the voluntary act of the plaintiff in complying with the terms of a proposal or offer to contract which it had not accepted, and which it was under no legal compulsion to perform.

In a suit for special damages alone, where the plaintiff is not entitled to recover the special damages sued for, there can be no recovery of general or nominal damages.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by the Sparks Milling Company against the Western Union Telegraph Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Payne Little & Jones, for plaintiff in error.

Dorsey Brewster, Howell & Heyman, for defendant in error.

HILL C.J. (after stating the facts as above).

The judgment dismissing the petition on general demurrer must be affirmed. Conceding the negligence of the defendant company as alleged, the damage to the plaintiff, nevertheless, did not result from this negligence, but was due to the voluntary act of the plaintiff in complying with the unauthorized demand of Smyth & Co., resulting from an inexcusable error of the latter in interpreting the third cablegram which by its express terms applied only to the "Armadale" transaction, which transaction had been entirely closed by the two previous cablegrams, the offer made by the milling company and its acceptance by Smyth & Co., as referring to the cablegram offering to purchase 3,000 sacks of "Sparks' Best" at 23-6 shillings per sack, and as being an acceptance of the offer. The alleged delay in delivering the confirmatory cablegram referring to the "Armadale" flour transaction cannot reasonably be considered as forming the basis of any claim for damages in connection with the "Sparks' Best" flour transaction. This cablegram could not have been reasonably construed as referring to the "Sparks' Best" flour transaction, or as a reply to the proposition to buy "Sparks' Best" flour, contained in the cablegram of Smyth & Co., for the very simple reason that the confirmatory cablegram by its terms referred to the "Armadale" transaction, confirming the sale theretofore made of the 1,000 sacks of "Armadale" flour and offering to sell 1,000 more sacks at a third advance. When Smyth & Co. construed this confirmatory cablegram as relating to 3,000 sacks of "Sparks' Best" flour, they made an unreasonable and inexcusable error, and this erroneous interpretation was in no sense binding upon the milling company; and if the milling company for the purpose of protecting its credit, accepted this erroneous construction, it was its voluntary act, for it was not legally bound to sell the 3,000 sacks of "Sparks' Best" flour to Smyth & Co. at the price offered by them. It had expressly declined this offer, and had made a counterproposition; and, while the cablegram containing this counterproposition may not have been delivered, it is indisputably shown that there was not, in law a contract between the milling company and Smyth & Co. in reference to the "Sparks' Best" flour.

Now unless the milling company was bound by a valid contract to sell to Smyth & Co. "Sparks' Best" flour, on the terms proposed in the cablegram, there could not be any recovery by it from the telegraph company. The essential condition precedent to the right of such recovery would be a valid contract with reference to "Sparks' Best" flour between the milling company and Smyth & Co. Western...