Tippin v. Western Union Telegraph Co.

• Decision Date: 15 April 1916
• Docket Number: No. 1622.,1622.
• Citation: Tippin v. Western Union Telegraph Co., 185 S.W. 539, 194 Mo. App. 80 (Mo. App. 1916)
• Parties: TIPPIN et al. v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

185 S.W. 539

194 Mo. App. 80

TIPPIN et al. v. WESTERN UNION TELEGRAPH CO.

No. 1622.

Springfield Court of Appeals. Missouri.

April 15, 1916.

Rehearing Denied May 9, 1916.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Action by J. W. Tippin and another against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

George H. Fearons and Albert T. Benedict, both of New York City, W. R. Self, of Springfield, and New, Miller, Camack & Winger, of Kansas City, for appellant. Patterson & Patterson, of Springfield, for respondents.

FARRINGTON, J.

Action for $979 damages alleged to have been sustained by plaintiffs by reason of defendant's failure to transmit and deliver a telegram. Trial by court without a jury. No declarations of law were asked or given, except a request by defendant for a peremptory instruction at the close of plaintiffs' case to the effect that under the pleadings, the evidence, and the law, plaintiffs were not entitled to recover anything except nominal damages — the price of the telegram — and costs, which the court refused to give. No evidence was offered by the defendant. Finding and judgment for plaintiffs for $549.30. Defendant appealed.

The petition, so far as material, is as follows:

"Plaintiffs further state that on the 13th day of October, 1913, plaintiff J. W. Tippin presented at one of defendant's offices at Kansas City, Mo., for transmission and delivery, the following message in relation to plaintiffs' business:

        "`Kansas City, Mo., 10/23, 1913
                

"`To C. L. Coleman, Aurora, Mo.: Will give one fifty-two per hundred cwt., delivered in barrel or bulk to cars, everything except ciders and rots. One fifty is market. I add two cents as I want to handle your crop. Wire in morning. Care Blossom House.

                            J. W. Tippin.'
                

"That said message was duly transmitted and delivered to the said Coleman at Aurora, Mo., and that the said Coleman sent the following message in reply thereto:

              "`Aurora, Mo., Oct. 14, 1913
                

"`J. W. Tippin, Care Blossom Hotel, Kansas City, Mo.: I will sell my apple crop at the prices you name delivered at tables. You take all apples except ciders and those having soft hail peck or rots not larger than silver dime. You do the grading, furnish barrels, and do the packing. I will haul apples to you at cars, either at Aurora or Marionville, Missouri. Answer.

                        M. L. Coleman.'
                

"That said message was duly transmitted and delivered by defendant to plaintiff J. W. Tippin at Kansas City, Mo., and that on the said 14th day of October, 1913, he presented the following message in reply at one of defendant's offices in Kansas City, Mo., for transmission and delivery:

        "`Kansas City, Mo., Oct. 14, 1913
                

"`To C. L. Coleman, Aurora, Mo.: Will accept your proposition. Be there Sunday or Monday.

                       J. W. Tippin.'
                

"That defendant, its agents and employés, carelessly and negligently failed to transmit, or deliver, said last-mentioned message to the same Coleman, and that by reason of defendant's carelessness and negligence in so failing to transmit and deliver said message, the said Coleman, believing that his proposition had not been accepted, sold his entire crop to other parties, and plaintiffs lost the benefit of such deal.

"Plaintiffs further state that at the time that said last-described message was presented for transmission and delivery, they paid defendant the sum of 30 cents for the service requested.

"Plaintiffs further state that there were 1,400 barrels of apples of the character plaintiffs attempted to contract for in the foregoing messages, and that plaintiff J. W. Tippin relying upon defendant faithfully transmitting and delivering the last-mentioned message to the said Coleman, sold 800 barrels of said apples, through the Collins Brokerage Company of Kansas City, Mo., at the price of $3.25 per barrel, f. o. b. Aurora, Mo., which would have netted plaintiffs a profit of 73 cents per barrel, aggregating the sum of $584."

The petition then alleges that plaintiffs, believing the last-mentioned message had been transmitted and delivered, ordered a carload of barrels shipped to Aurora, and alleged damage in that connection. It is also charged that plaintiffs could have disposed of the remainder of the crop of apples at a profit. Also that plaintiffs became obligated to the Collins Brokerage Company for commission. But these last three items of damages were not included in the court's finding for plaintiffs and are not material.

The court found that the facts as to the telegrams were as alleged: That J. W. Tippin did not discover that the last-mentioned telegram was not delivered to Coleman until Sunday when he talked with Coleman by telephone, at which time he found that Coleman had sold the apples off of one 40 acres of the orchard; that in the meantime and upon the filing with the defendant of the acceptance of Coleman's counter proposition, plaintiff J. W. Tippin contracted the sale of 800 barrels of No. 1 apples, which he proposed to get out of the lot he was purchasing from Coleman, at a profit of 73 cents per barrel over the bulk price contained in his offer and acceptance; that after Coleman learned that plaintiff had wired him accepting the counter proposition, he still offered to deliver to plaintiffs the remainder of the apples in the orchard, which the court found from the testimony would be about 450 barrels of No. 1 apples, but that plaintiffs declined to take the remainder, assigning as a reason that they could not fill the contract for the 800 barrels of No. 1's they had secured through the Collins Brokerage Company and would therefore have to cancel the contract and did not care to take any; that plaintiffs made no special effort to secure other apples to take the place of those theretofore sold by Coleman, but that it is not shown that other apples could have been had in the market, other than apples that were already in cold storage; also, that plaintiffs could have secured 800 barrels of apples, which would have graded No. 1, out of the Coleman orchard, and that they would have made a profit on said 800 barrels of 73 cents per barrel over the bulk price paid for them.

The defendant objected to the introduction of any evidence "because the petition does not state facts sufficient to constitute a cause of action; the petition is based upon a wrong rule of damages; and it appears from the face of the petition itself that the contract was completed between plaintiffs and Coleman, and therefore they cannot recover in this case for not getting that contract." This was overruled and exception saved, and is the basis for the first assignment of error. It is argued that the delivery of the third telegram quoted in the petition to the telegraph company completed the contract between plaintiffs and Coleman; that upon such delivery to the telegraph company at Kansas City, on October 14th, Coleman became bound, and that for any breach of that contract thereafter made, Coleman, and not defendant, was liable; and upon this ground it is urged that the petition failed to state facts sufficient to constitute a cause of action against this defendant.

The only Missouri decision cited by appellant under this contention is that of Lungstrass v. German Ins. Co., 48 Mo. 201, 204, 8 Am. Rep. 100. That case simply declares the now well-settled doctrine laid down in 9 Cyc. 295, that:

"Since agreements made by means of the post or the telegraph are simply an illustration of the general rule * * * that the offerer takes the risk as to the effectiveness of communication if the acceptance is made in the manner either expressly or impliedly indicated by him, it necessarily follows that the contract is complete as soon as the letter containing the acceptance is mailed or the telegram sent, and it makes no difference whatever that through mistake of the post office authorities or the telegraph company, or through accident in transmission, it is delayed or is lost and never received by the offerer" — citing, besides the Lungstrass Case, supra, Egger v. Nesbit, 122 Mo. 667, 27 S. W. 385, 43 Am. St. Rep. 596, Lancaster v. Elliot, 42 Mo. App. 503, Greeley-Burnham Gro. Co. v. Capen, 23 Mo. App. 301. Whaley v. Hinchman, 22 Mo. App. 483, and Noyes v. Phœnix Mut. L. Ins. Co., 1 Mo. App. 584.

Respondents take the position that even though a contract was consummated by the parties, yet this would not relieve, the appellant from an action on account of its tort; that respondents would have their election to proceed either against appellant for its tort or against Coleman for a breach of the contract; that a petition which states the delivery of a message for transmission and delivery to a telegraph company, the payment of the usual fee, and alleges negligence in the transmission or delivery of such message, states a cause of action and entitles the sender to recover all damages suffered, both general and special, citing section 3334, R. S. 1909, and Bliss v. Telegraph Co., 30 Mo. App. 103; and that it is wholly immaterial whether the undelivered message consummates a contract between the sender and sendee, citing McGregor v. Western Union Telegraph Co., 85 Mo. App. 308, Elam v. Western Union Telegraph Co., 113 Mo. App. 538, 88 S. W. 115, and Western Union Telegraph Co. v. Snow, 31 Tex. Civ. App. 275, 72 S. W. 250.

In the case of McGregor v. Western Union Tel. Co., supra, the plaintiff received a letter from one Gates offering him work as a timber estimator at $5 per day, requesting plaintiff to answer by wire. Plaintiff answered by wire in these words, "I can come as P. G. Gates requested," which message, when received, was changed to these words, "I can't come as P. G. Gates requested." As a result of the change in the message plaintiff failed to get the position, and it was held that plaintiff was entitled to recover from...