The Western Union Tklegraph Co. v. Fatman

Citation73 Ga. 285
PartiesThe Western Union Tklegraph Company. vs. Fatman.
Decision Date30 September 1884
CourtSupreme Court of Georgia

Telegraph Companies. Damages. Notice. Contracts. Before Judge Harden. City Court of Savannah. February Term, 1884.

Fat man brought suit against the Western Union Telegraph Company for $499.50, alleging, in brief, as follows: He was a commission merchant, and desired to furnish a vessel to carry cotton to Barcelona, and for that purpose communicated with W. H. Scott & Company, his agents in Liverpool, so as to get the vessel and furnish it on commission. They sent to him, in reply, the following cipher dispatch:

"10 L'pool, rollona

" 1 12 1882

"To Witwal "10 24 a

"Sav'h.

"Casting Troubadour, Monopastos, Iconology, Barcelona thickly, Sautern Rollona."

The meaning of this was:

"Offer your firm, subject to immediate reply by wire, 'Troubadour, ' capacity about 1, 000 tons, net register, 31-64d. Barcelona, 5 per cent commissions on charter, 16 working days, last half February loading."

Had this been delivered with reasonable speed by defendant after its reception in Savannah, plaintiff could have furnished the Troubadour to the person desiring it, and made his commissions thereon; but its delivery was negligently delayed, and plaintiff was damaged.

Defendant pleaded the general issue, and that the message was in cipher and did not put defendant on notice of its value, and that the damages claimed were not in contemplation of the parties when the contract was made.

Nisbet, a witness for the plaintiff, testified as follows:

1 am a cotton merchant in Savannah; engaged in the business fifteen years; in January, 1883, I informed Fat-man I could use a steamer of 1, 000 tons to load in Savannah for Barcelona in February or March, and after his telling me that he had reason to think he could get such a vessel, I made him an offer for it; he was given until 11 o'clock, January 12th, to accept, and ten minutes more were given by special request; the offer was verbal; when this offer was made to Fat man, I was offered by Minis a steamer answering my requirements, although larger; but as Fat man had gone to some expense in telegraphing, I wanted to give him an opportunity to secure the business; I told Minis that his steamer would be taken if Fat man did not answer by 11:10; received no answer from Fat man at time stipulated, and closed with Minis; about an hour and a half later, Fat man offered the steamer, which was declined. The contract was oral, and was a mere offer; I was under contract up to a certain time; Fat man was not.

There was also other evidence showing that the telegram was received at defendant's office at twenty-four minutes after ten o'clock a. m.; that the telegraph office was four and a half minutes' walk from Fat man's office; that the message was delivered at 11:55 a. m., and was an answer to a previous telegram, plaintiff having been in telegraphic correspondence about the matter for about eight days; that " Witwal " was the registered address of Fat man at defendant's office; that the commissions which he would have made, if he had secured the vessel for Nisbet, would have amounted to $199.50, but his only actual expenditure was for the transmission of messages. The delivery was during ordinary business and banking hours.

The jury found for plaintiff $499 50. Defendant moved for a new trial, on the following among other grounds:

(1.) Because the court admitted in evidence before the jury a certain paper addressed to " Witwal, " purporting to be the telegram received by the plaintiff (the alleged delay in the delivery of which is complained of), over the objection of defendant's counsel, that the same was a copy, and that no proof was introduced or offered that the said telegram was the identical telegram which the plaintiff charged in his declaration was delivered by his agents in Liverpool to the defendant for transmission.

(2.) Because the court permitted the witness, Schroder, over the objection of defendant's counsel, to translate the said paper (which was in cipher) to the jury.

(3.) Because the court overruled the defendant's motion for a non-suit, which motion was on the following grounds:

(a.) That it appeared from the evidence that the telegram, the delay in the delivery of which is complained of, was in cipher, obscure and unintelligible, and that no notice of its contents or value had been given to the defendant, and therefore the plaintiff was not entitled to recover in this action more than nominal damages, to-wit: the tolls paid for transmission, which had already been tendered and refused.

[On the message blanks of defendant were printed the following conditions:

"To guard against mistakes on the lines of this company, the sender of every message should order it repeated, that is, telegraphed back from the terminus of said lines to the original place. For such repeating, the sender will be charged, in addition, one-half the usual tolls of this company on that portion of its lines over which such message passes.

"This company will not assume any responsibility in respect to any message beyond the terminus of its own lines; and it is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in transmission or delivery, or for non-delivery to the next connecting telegraph company, of any unrepeated message, beyond the amount of that portion of the charge whicli may or shall accrue to this company out ofthe amount received from the sender for this and the other companies, by whose lines such message may pass to reach its destination; and that this company shall not be liable for mistakes in the transmission or delivery, or for non-delivery, to the next connecting telegraph company, of any repeated message, beyond fifty times the extra sum received by this company from the sender for repeating such message over its own lines, nor for errors in cipher or obscure messages. And this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company to reach its destination.

"This company is not to be liable for damages in any case where the claim is not presented in writing within thirty days after the sending of the message."]

(b.) That the evidence failed to show any valid and binding contract between the plaintiff and his alleged correspondent in Liverpool, by which they authorized him to accept the offer of John Nisbet to charter the vessel, " Troubadour, " and that without the proof of such a valid and binding contract, there could be no legal damages resulting to the plaintiff by reason of a delay in the delivery of said telegram.

(4.) Because the court refused to charge as follows: "If you find that the telegram, in this case, the negligent delivery of which is complained of, was in cipher, and did not indicate that either the sender or the receiver was liable to sustain loss if the dispatch was not promptly delivered to the plaintiff, in such case defendant is liable only for nominal damages, to-wit: the price of the tolls tendered."

(5.) Because the court refused to charge as follows: " If you find from the evidence that the said telegram was not delivered in proper time by reason of the gross negligence of the defendant, but further find that said telegram was in cipher and its meaning not communicated to defendant, the plaintiff can, in this action, only recover nominal damages."

(6.) Because the court refused to charge as follows: "If you find that in this case the defendant used ordinary care and diligence in the delivery of said telegram, that thesame was delivered in business hours, and that the plaintiff had not made known to.the defendant the fact that he desired to receive said telegram before a specified hour in the day, then the plaintiff cannot recover, even though it should appear from the evidence that the plaintiff might have realized a profit from a secret contract which he had with John Nisbet, if said telegram had been delivered a few moments previous to the hour agreed upon between the plaintiff and the said Nisbet."

(7.) Because the court charged as follows: " But when the company receives a telegram, knowing it is in cipher, and not understanding it, the contract is that they will deliver that dispatch...

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17 cases
  • Connell v. The Western Union-Telegraph Company
    • United States
    • Missouri Supreme Court
    • May 16, 1893
    ... ... 422; Potts v. Tel. Co., 18 ... S.W. 604; Wadsworth v. Tel. Co., 2 Pick. (86 Tenn.) ... 695; S. C., 8 S.W. 574; Tel. Co. v. Fatman, 73 Ga ... 285; Tel. Co. v. Reynolds, 77 Va. 173; Tel. Co ... Henderson, 89 Ala. 510; S. C., 7 So. Rep. 419; Beasely v ... Tel. Co., 39 F ... ...
  • Western Union Telegraph Co. v. Rogers
    • United States
    • Mississippi Supreme Court
    • May 25, 1891
  • McNeil v. Postal Telegraphcable Co.
    • United States
    • Iowa Supreme Court
    • February 15, 1912
    ... ... m. the Western States Portland Cement Company of Kansas City, Mo., delivered a telegram ... U. Tel. Co. v. McLaurin, 70 Miss. 26, 13 So. 36;W. U. Tel. Co. v. Fatman, 73 Ga. 285, 54 Am. Rep. 877;Postal Tel. Co. v. Louisville Co., 136 Ky ... ...
  • McNeil v. Postal Telegraph Cable Co.
    • United States
    • Iowa Supreme Court
    • February 15, 1912
    ... ... at 3 o'clock p. m., the Western States Portland Cement ... Company of Kansas City, Mo., delivered a ... Co. v. McLaurin, 70 Miss. 26, (13 So. 36); W ... U. Tel. Co. v. Fatman, 73 Ga. 285, (54 Am. Rep. 877); ... Postal Tel. Co. v. Louisville Co., ... ...
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