U.S. Tel. Co. v. Gildersleve

• Decision Date: 24 June 1868
• Citation: 29 Md. 232
• Parties: THE UNITED STATES TELEGRAPH COMPANY v. GEORGE GILDERSLEVE.
• Court: Maryland Court of Appeals

29 Md. 232

THE UNITED STATES TELEGRAPH COMPANY v. GEORGE GILDERSLEVE.

Court of Appeals of Maryland

June 24, 1868

APPEAL from the Superior Court of Baltimore City.

This action was brought by the appellee to recover damages for the failure of the appellant to transmit a dispatch ordering a sale of gold. The facts are sufficiently stated in the opinion of the Court.

1 st Exception. On the evidence, the plaintiff prayed the Court to instruct the jury,--That if they believe from the evidence in the cause, that the defendant was on the 9th of March, 1865, engaged in the business of telegraphing messages from the city of Baltimore, to the city of New York and from the city of New York to the city of Baltimore, and of delivering such messages to the persons to whom they were directed in either of said cities respectively; and that on the afternoon of said day the plaintiff, or any one by him authorized to send messages in his name, left at the office of the defendant the message to Dibble & Cambloss, which has been offered in evidence, and that the defendant received said message for the purpose of telegraphing and delivering the same to Dibble & Cambloss, in New York; and if they further believe that on said afternoon of the 9th of March after the said message was so received by the defendant, the plaintiff called at the office of the defendant to inquire whether such message had been telegraphed as directed, and was told by an employee in the office of the defendant that said message had gone through; and if they further believe that the defendant might, by the exercise of reasonable diligence, have telegraphed said message, and delivered the same to Dibble & Cambloss, on the said afternoon of the 9th of March, and that if Dibble & Cambloss had received said message on said afternoon, they would have sold fifty thousand dollars of gold for and on account of the plaintiff at or near the then ruling rate thereof in the city of New York; and if they further believe that said message was never received by Dibble & Cambloss, and that the plaintiff learned on the morning of the 10th of March, 1865, that said message had not been received by Dibble & Cambloss, and on said morning, in consequence thereof, telegraphed to Dibble & Cambloss to sell for him fifty thousand dollars of gold, and that Dibble & Cambloss did accordingly in compliance with said last mentioned telegram, sell for him fifty thousand dollars of gold, then the plaintiff is entitled to recover the difference, if any, between the price which the jury may believe Dibble & Cambloss would have sold fifty thousand dollars of gold for, and on account of the plaintiff, if they had received the first mentioned telegram at the time when by the exercise of reasonable diligence on the part of the defendant, they ought so to have received it, and the price for which they sold fifty thousand dollars of gold for, and on his account, in response to said second telegram.

Whereupon the defendant also prayed the Court to instruct the jury as follows:

1. That the terms and conditions on the back of the paper offered in evidence by the plaintiff, containing the dispatch, entered into and formed a part of the contract between the plaintiff and defendant, and the plaintiff cannot recover in this cause any amount beyond the cost of the message, if the jury shall find that the plaintiff did not direct the same to be repeated, provided, the jury shall find that the said message was dispatched in due course on the line, although the jury may find that the said message was never received by Dibble & Cambloss.

2. That if the jury shall find that the defendant established the rules and regulations contained in the printed form, offered in evidence by the plaintiff, and the plaintiff delivered the message to the defendant, and the same was not directed to be repeated by the plaintiff, and shall find that the message was dispatched in due course, then the plaintiff is not entitled to recover beyond the amount of the cost of such dispatch, even although they may find that said message was not delivered to Dibble & Cambloss.

3. That the plaintiff cannot recover in this case any thing but nominal damages, if they shall find that he has sustained no loss by reason of the non-delivery of said dispatch, even although they may find that A. B. Patterson, acting by authority of the plaintiff, sent said message, and sustained loss by reason of such failure.

4. That there is no evidence that the plaintiff has sustained any damage in this cause, and the plaintiff is therefore not entitled to recover any thing beyond nominal damages.

5. That if the jury shall believe that the message to Dibble & Cambloss, was intended to direct them to sell gold coin of the United States, and that they failed to make sale of such coin by reason of the failure of the defendant to transmit the message, that no loss nor damage could have legally occurred to the plaintiff therefrom.

6. That the defendant is not liable in this action for the non-delivery of the message, if the jury shall find that the defendant, by its agents, used ordinary diligence in attempting to transmit and deliver the said message.

The Court thereupon granted the plaintiff's prayer, and the defendant's sixth prayer, but rejected the defendant's first five prayers; to this ruling of the Court, the defendant excepted.

2 d Exception: After the ruling of the Court in the first exception, and before the argument to the jury was commenced, the defendant prayed the court to instruct the jury--that the burthen of proof is upon the plaintiff to prove want of ordinary diligence and care on the part of the defendant in this case.

But the plaintiff objected, that the defendant had no right, at that stage of the cause, after the jury had been charged by the Court, to offer the prayer, and in support of his objection, produced and relied on the following rules of the Superior Court:

36. After all the testimony intended to be offered by plaintiff and defendant shall have been introduced, the Court will expect to be furnished with all the prayers which the parties respectively may propose to found thereon. These prayers shall be argued in connection together, unless otherwise directed by the Court; the plaintiff, if he shall have submitted any material proposition not admitted by the defendant, being entitled to open and conclude on the whole. And the Court, upon the whole case, will give such instruction as may appear requisite to place the cause fully before the jury.

37. After the jury shall have been so charged or instructed as contemplated by the preceding rule, no additional prayer will be received, nor additional evidence be given to the jury, unless by permission of the Court.

The plaintiff having objected to the exception of the prayer, the Court, in the exercise of its discretion, rejected it as being too late. To this refusal by the Court to receive the prayer, and to give the instruction asked for, the defendant excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before BARTOL, C.J., NELSON, BRENT and ALVEY, J.

Levin Gale for the appellant.

The rules and regulations of the company exempting it from liability in cases of unrepeated messages, were reasonable and proper, and the company is not liable beyond those regulations. Birnie vs. New York and Wash. Tel. Co., 18 Md. Rep., 341, 357; Ellis vs. Amer. Tel. Co., 13 Allen, 227; McAndrew vs. Electric Tel. Co., 33 E. L. & Eq., 180; Code of Pub. Gen'l Laws, Art. 26, secs. 117, 118.

If the plaintiff were not bound by the rules and regulations of the company, he was bound by the terms and conditions of the paper containing the dispatch, which he delivered to the defendant to be transmitted.

The prayer of the plaintiff was erroneously granted, for the following reasons:

1st. Because " gold coin of the United States" being the ultimate standard of value, there can not be lawfully any loss or gain upon any transactions in relation to it.

2d. The order to Dibble & Cambloss, giving, according to the testimony, a discretion to them to " sell for cash, or on three days' time, buyers or sellers option, as in their judgment would be most advantageous," was purely speculative and uncertain, and as the dispatch was not received, and their judgment and discretion was not exercised, there was no standard upon which the damages could be ascertained or recovered.

3d. The message was in such obscure terms that it did not give the defendant information as to the importance of the transaction, but was, on the contrary, calculated to deceive. The defendant is, therefore, not liable for the extraordinary damage claimed. Lansburger vs. Magnetic Tel. Co., 32 Barbour, 530.

4th. The prayer assumes that the plaintiff can recover for losses incurred by Patterson, and not by the plaintiff.

5th. The prayer was calculated to mislead the jury on the subject of due care and diligence.

6th. The prayer was erroneous, in that it did not require the jury to find that the plaintiff or Patterson had gold belonging to plaintiff or Patterson in their hands, at the time when the dispatch in ordinary course would have been received.

The first five prayers offered by the defendant contain the reverse of the plaintiff's prayer, and are sustained by the authorities relied on to show that the granting of the plaintiff's prayer was erroneous.

The defendant's sixth prayer was granted, but the plaintiff's prayer being granted likewise, the additional prayer by the defendant was asked for in explanation of the law announced by the Court, and such prayer should have been received and granted under the circumstances, especially as the case had not gone to the jury.

John H. Thomas and ...