W. Union Tel. Co. v. Wilhelm
| Decision Date | 16 June 1896 |
| Parties | WESTERN UNION TEL. CO. v. WILHELM. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. It is not error for a court to overrule a motion to compel a pleader to make his pleadingmore definite and certain, when to sustain such motion would require the pleader to state matters of evidence rather than conclusions of fact.
2. The general rule is that the party injured by breach of contract is entitled to recover all his damages, including gains prevented as well as losses sustained, provided they are certain, and such as might naturally be expected to follow the breach. Griffin v. Colver, 16 N. Y. 489.
3. The plaintiff, residing at Wayne, Neb., authorized his agents in Omaha, Neb., to exchange a tract of land owned by him for a stock of merchandise, investing them with discretion as to the merchandise and terms of the exchange. The agents negotiated such an exchange, and delivered to the telegraph company, at Omaha, a message addressed to the plaintiff, advising him of the fact, and requesting him to come to Omaha, and bring an abstract of title, a deed, and $300 in money. The telegraph company never delivered the message, and by reason thereof the exchange was never consummated. It appeared that, if the message had been delivered, the exchange would have been effected, and the plaintiff would have made a profit thereon. Held, the telegraph company was liable to the plaintiff for the profits he would have made had the exchange been consummated.
Error to district court, Wayne county; Jackson, Judge.
Action by O. O. Wilhelm against the Western Union Telegraph Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.
Estabrook & Davis, for plaintiff in error.
A. A. Welch and W. L. Rose, for defendant in error.
O. O. Wilhelm sued the Western Union Telegraph Company in the district court of Wayne county, alleging in his petition, in substance: That on the 29th of January, 1892, Malmgren & Lovegren, residing in Omaha, Neb., were his agents. That on that date they delivered to the telegraph company, at Omaha, a dispatch in words and figures as follows: That the telegraph company received this message, and agreed to correctly transmit and deliver it to Wilhelm at Wayne, Neb. That prior to the said date Wilhelm's agents were negotiating an exchange of a quarter section of land in Sherman county, belonging to Wilhelm, for a stock of merchandise in Omaha, Neb. That on said date Wilhelm's agents had effected the exchange of Wilhelm's land for a stock of merchandise. That Wilhelm had made an engagement to meet his agents at their office in Omaha upon receipt of a message from them that they had perfected the exchange of said land for said merchandise. That the telegraph company never delivered said message. That by reason thereof Wilhelm arrived in Omaha too late to consummate the exchange of said land for said stock of goods. That said exchange was for that reason never perfected, and he thereby lost the profit he would have made in such exchange, to his damage in the sum of $1,500. Wilhelm had a verdict and judgment for $100, to reverse which the telegraph company has filed here a petition in error.
1. The telegraph company filed in the district court a motion as follows: “Comes now the defendant, and asks the court that the plaintiff be required to make his petition herein more definite and certain in this, to wit: How, and in what manner, he could or expected he could make a profit of fifteen hundred ($1,500) dollars in the trade or exchange mentioned in said petition.” The overruling by the district court of this motion is the first assignment of error argued here. The petition was sufficiently definite and certain. It stated the facts. To have required Wilhelm to state in his petition in what manner he would have realized a profit on the exchange, had it been made, would have required him to state the evidence. If counsel for the telegraph company desired Wilhelm to state in his petition the value of the land and the value of the goods, they should have so framed their motion. Unless a motion can be allowed in the exact form presented to the court, it should be denied. McDuffie v. Bentley, 27 Neb. 380, 43 N. W. 123;Stuht v. Sweezey, 48 Neb.767, 67 N. W. 748. The refusal of the court to grant this motion was not error.
2. It is next assigned for error that the district court erred in giving instructions 3 and 4. The exception taken to the instructions at the trial was in the following language: “To the giving of the third and fourth of which instructions the defendant then and there duly excepted.” The court did not err in giving both these instructions. The fourth, at least, is a correct statement of the law of the case; and, since the assignment is that the court erred in giving both the instructions, and one of them is good, the assignment must be overruled.
3. The third assignment of error is that the court erred in refusing instructions 1, 4, and 5 asked by the defendant below. Exceptions taken at the trial to the instructions refused were as follows: “The defendant thereupon asked the court to instruct the jury as follows, which the court refused to do, and upon such refusal the defendant then and there excepted.” Then follow instructions Nos. 1, 4, 5, and 6 asked by the telegraph company, and then the following: “To the refusal of the court to give to the...
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