The Western Union Tklegraph Co. v. Fatman
Citation | 73 Ga. 285 |
Parties | The Western Union Tklegraph Company. vs. Fatman. |
Decision Date | 30 September 1884 |
Court | Supreme 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:
The meaning of this was:
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:
(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: ...
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