The Western Union Tel. Co. v. Martin

• Decision Date: 31 October 1881
• Citation: 9 Ill.App. 587,9 Bradw. 587
• Parties: THE WESTERN UNION TELEGRAPH COMPANYv.THOMAS J. MARTIN, JR.
• Court: United States Appellate Court of Illinois

9 Ill.App. 587

9 Bradw. 587

THE WESTERN UNION TELEGRAPH COMPANY

v.THOMAS J. MARTIN, JR.

Appellate Court of Illinois, First District.

October Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Opinion filed January 4, 1882.

This is an appeal by the Western Union Telegraph Company, from a judgment rendered against it by the Superior Court, for failing to transmit correctly, a message in the following words:

“To F. M. GUNBY, Charleston S. C.

Excited, Elaborate, Lordship Educate punctual Arab boxes Lordship side pieces Lunar sixteen Cherub a bargain see Williams timid.

THOMAS J. MARTIN, Jr.”

The message, translated, means:

“Market excited, dry salt clear ribs packed seven and one-eighth, rejected dry salt clear ribs packed, six and one quarter; think can buy one hundred boxes rejected side pieces, average weight sixteen pounds, at five and three-eights. A bargain. See Williams. Answer immediately.”

The message was sent as written, except the word sixteen which was transmitted as sixty, August 13, 1878. On the same day, appellee received a reply from Grunby, directing him to buy 100 boxes, which appellant did, shipping by Grunby's direction, 40 boxes to one Bischoff, and 60 boxes to Wieters, customers of Grunby's in Charleston; and appellee drew his drafts on them for their respective amounts. Wieters paid the draft on him. Bischoff, on learning that the meat was sixteen pounds instead of sixty, refused to receive it, and let the draft on him go to protest. Grunby, claiming to be nnable to place the meat elsewhere, appellee sent an agent to Charleston, who disposed of it at a loss of $297. The expenses of the agent were $125. Appellee notified the company of his loss, and demanded re-imbursement, which being refused, he brought this suit, and recovered a verdict for $422, for which he had judgment, and the company appealed.

The defendant requested the court to instruct the jury as follows:

I. “That the message in which the error occurred is in cipher, and unintelligible, and does not disclose the nature of the business to which it relates, and in such case, unless the nature of the matter to which it related was disclosed to the defendant, of which there is no evidence, the measure of damages is the amount, if any, paid for the transmission, with interest thereon from the time of payment at the rate of six per cent. per annum.

II. That if the jury believe from the evidence that the message in question was in cipher and unintelligible to defendant, and that defendant had no knowledge except what was conveyed by the language of the message itself of the meaning of the message, or of the character or extent of the business to which it related, or of its importance, or of the probable or possible consequences of a failure to transmit it correctly, then the plaintiff can recover in this action no more than the amount, if any, paid by plaintiff to defendant for transmitting the message, with interest thereon.

III. That if the jury believe from the evidence that the plaintiff did not, within sixty days after the sending of the message in question, present to defendant a claim in writing, showing the character and extent of the actual loss, or, with such exactness as was then practicable, the character and extent of the apprehended loss by reason of the error, plaintiff cannot recover.

IV. That it became the duty of plaintiff, on learning that an error had occurred, if he intended to hold defendant responsible for the loss which might occur, to notify defendant of such intention, and make tender to the defendant of the goods on condition of its paying the price and all charges incident to the purchase, and that in case of the refusal of defendant to accept such tender, he intended to dispose of the goods to the best advantage, and after crediting defendant with any profits arising on the transaction, to hold defendant responsible for the difference between the proceeds of such disposition and the cost of the goods, including all proper charges, and on the failure of defendant, after notice, to accede to such offer, to proceed accordingly; and if plaintiff did not perform his duty as above indicated, the jury must find for defendant.”

Which instructions the court refused to give, and the defendant excepted.

At the instance of plaintiff the court gave to the jury an instruction reciting at length the circumstances of the transaction, as testified to by witnesses for plaintiff, and directing the jury, if they should believe from the evidence, that the facts were as therein recited, to find for the plaintiff, and assess his damages at the amount necessarily lost in the sale and disposition of said meat, together with the amount necessarily expended in such disposition.

Messrs. WILLIAMS & THOMPSON, for appellant; that in such cases the damages recovered cannot be more than the amount paid for the transmission of the message, cited Hadley v. Baxendale, 9 Exch. 341; Griffin v. Colver, 16 N. Y. 489; Benton v. Fay, 64 Ill. 417; Sanders v. Stuart, L. Rep. 1; Candee v. W. U. Tel. Co. 34 Wis. 471; Tyler v. W. U. Tel. Co. 60 Ill. 421; W. U. Tel. Co. v. Tyler, 74 Ill. 168; Shields v. Wash. Tel. Co. Allen's Tel. Cases, 5; Kinghorne v. Montreal Tel. Co. 18 U. C. Q. B. 60; Baldwin v. U. S. Tel. Co. 45 N. Y. 744; McCall v. W. U. Tel. Co. 7 Abb. (N. C.) 151; Beaupre v. P. & A. Tel. Co. 21 Minn. 155; U. S. Tel. Co. v. Gildersleeve, 29 Md. 232; Barnesville Bank v. W. U. Tel. Co. 30 Ohio St. 555; Behm v. W. U. Tel. Co. 11 Chicago Legal News, 276; Dorgan v. Tel. Co. 1 Am. L. T. 407; Hord v. W. U. Tel. Co. 3 Cin. Law Bulletin, 147; Lane v. Montreal Tel. Co. 7 U. C. C. P. 23; Stevenson v. Montreal Tel. Co. 16 U. C. Q. B. 530.

Plaintiff cannot recover because he failed to present a claim in writing within sixty days, as required by the regulations of the company: Oppenheimer v. U. S. Ex. Co. 69 Ill. 62.

Such a regulation is reasonable, and has been expressly upheld: Southern Ex. Co. v. Caldwell, 21 Wall. 264; Weir v. Ex. Co. 5 Phila. 355; U. S. Ex. Co. v. Harris, 51 Ind. 127; Lewis v. Great W. R'y Co. 5 H. & N. 867; Wolf v. W. U. Tel. Co. 62 Pa. St. 83; Young v. W. U. Tel. Co. 4 N. Y. 390; Aiken v. W. U. Tel. Co. 5 Rich. 358.

Mr. CHARLES B. MCCOY, for appellee; cited Tyler v. W. U. Tel. Co. 60 Ill. 421; W. U. Tel. Co. v. Tyler, 74 Ill. 168.

WILSON, P. J.

The principal question for determination is as to the measure of damages against a telegraph company for failing to transmit correctly a message in cipher, the same not being translated, nor its meaning otherwise disclosed to the company at or before the time of its being sent. The true rule of damages for the breach of a contract is not always easy of ascertainment, especially as respects that class of damages denominated special or consequential, each case necessarily depending upon its own circumstances. In general, it may be said that a party in default is required to make good the damages sustained by his breach of contract which were contemplated by, or may be reasonably supposed to have entered into the contemplation of the parties when making the contract. 1 Sedg. on Dam. 122.

In Hadley v. Baxendale, 9 Exch. 341, Baron Alderson states the rule as follows: “Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of a breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as a probable result of the breach of it.”

The general rule as thus stated has, we believe, been everywhere recognized and acted upon by the courts of this country. In New York the rule is laid down in substantially the same language. Mr. Justice Selden, in Griffin v. Colver, 16th N. Y. 489, said “The party injured is entitled to recover all his damages, including gains prevented as well as losses sustained, and this rule is subject to but two conditions; the damages must be such as may be fairly supposed to have entered into the contemplation of the parties when they made the contract--that is, they must be such as might naturally be expected to follow its violation; and they must be certain both in their nature and in respect to the cause from which they proceed.”

Our own Supreme Court, in Benton v. Fay, 64 Ill. 417, and in numerous other cases, have announced substantially the same rule. Greene v. Mann, 11 Ill. 644; Priestly v. N. I. & C. R. R. Co. 207; Strawn v. Coggswell, 28 Ill. 461. See, also, Goodkind v. Rogan, 8 Bradwell, 415.

It would seem to follow, as a corollary to the above, that to make a party to a contract responsible, in case of its non-fulfillment by him, for ulterior consequences, involving the payment of damages which do not flow directly and naturally from its breach, he should be informed with reasonable preciseness of the purpose for which the subject of the contract is intended by the other party. That purpose should be brought fairly within the contemplation of the one who is to be charged. Sedg. on Dam. 6th Ed. 83.

Applying these principles to the case of a message delivered to a telegraph company, it seems clear that in order to charge the company for ulterior and remote consequences, of which, from the face of the message, it could not be advised, it is the duty of the sender to disclose to the company the purport and meaning of the communication presented for transmission. And such we understand to be the settled doctrine both in England and this country.

In Sanders v. Stuart, 1 L. R. Com. Pl. Div. 326, the plaintiff delivered to the defendant a cipher message to be transmitted to America, but which, through the defendant's negligence was not forwarded. The plaintiffs sought to recover for profits,...