GARY
A. J.
The
complaint herein, omitting the formal allegations, is as
follows: "(5) That on the 27th day of December, 1895
the plaintiffs engaged the defendant to transmit from the
said town of Sheridan to the said town of Greenwood, and
there to deliver to the said Sam Wallingford, one of the
plaintiffs herein, the following message: 'Sam
Wallingford, Greenwood, S. C.: Shall I sell Simms & Wathen
load four hundred, four months, six per cent.?
S. L. Wallingford.' (6) That the said defendant had
notice of the importance of the said message, and the damage
and loss that would likely fall upon plaintiffs if the said
message was not delivered promptly and correctly to the said
Sam Wallingford. (7) That the said message was from the son
and partner of the said Sam Wallingford, and one of the
plaintiffs herein, who wished to know if he would sell a load
of mules, consisting of thirty head, and belonging to the
plaintiffs, to Simms & Wathen, at the price of one hundred
dollars each, on four months' time, at six per cent.
interest. (8) That said message was transmitted by the
defendant to the said town of Greenwood, state of South
Carolina, the residence of said Sam Wallingford, and received
by the agent of the defendant on the said 27th day of
December, 1895. (9) That although said message was received
by the agent of the defendant at Greenwood on the 27th day of
December, 1895, the said defendant carelessly and
negligently, and not regarding its duty in that behalf,
failed to deliver said message to the said Sam Wallingford
for more than a week; that said Sam Wallingford first learned
of the transmission of said message for him
through a letter from said S. L. Wallingford, his son and
partner, at Sheridan, Indiana, when said Sam Wallingford
called at the office of the defendant in Greenwood, and
received said message from the agent of the defendant, more
than a week after its receipt at Greenwood by the said
defendant. (10) That the plaintiffs would have sold said load
of mules, consisting of thirty head at the price of one
hundred dollars per head, which said price was offered to the
plaintiffs by said Simms & Wathen, had not the said defendant
carelessly and negligently failed to deliver the said message
to the said Sam Wallingford upon its receipt by the defendant
at Greenwood, South Carolina, or within a reasonable time
thereafter. (11) That, by reason of the careless and
negligent conduct of defendant in failing to
deliver said message to the said Sam Wallingford upon its
receipt at Greenwood, or within a reasonable time thereafter,
the plaintiffs were unable to sell the said thirty head of
mules for three months, and kept them at great care and
expense to the plaintiffs, to wit, the sum of seven dollars
per head per month, in feed and attention, and at the end of
said time sold said mules at as great loss to the plaintiffs,
to wit, at the price of seventy-seven dollars and fifty cents
per head, which was the highest price they could get for
them, making the total loss to the plaintiffs upon each of
the said thirty head of mules the sum of forty-three dollars
and fifty cents, and that thereby plaintiffs have been
damaged by the careless and negligent conduct of the
defendant as aforesaid in the sum of thirteen hundred and
five dollars." All except the formal allegations were
denied. The jury rendered a verdict in favor of the
plaintiffs for $675.
The
defendant appealed upon exceptions, the first of which is as
follows:
"(1)
Questions of Admissibility of Evidence.
"(a)
The circuit judge erred in refusing to reject the
deposition of S. L. Wallingford upon the several grounds
stated: (1) The original notice of taking said deposition
was not signed by plaintiffs' attorneys. (2) The
certificate of the notary public does not state where the
examination of the witness was had. (3) The notary public
does not, after his signature, state his jurisdiction or
the source of his authority. (4) The certificate is not
sealed with the seal of the notary public.
"(b)
The circuit judge erred in allowing the question to the
witness S. L. Wallingford, and his answer thereto, as
follows: 'Q. Where was the nearest market for such
mules, and what was the best market price for the same from
the time of the offer up to the time of the sale? A. The
nearest market where there were pens and an auction sale
for such mules was at Indianapolis, Indiana, 30 miles from
my place of residence; but there had been foreign buyers
who were in the habit of coming to my place of residence
and buying such mules up to and previous to the said time
of sale to Simms & Wathen or the offer on such mules. And
the best price that I had been offered from any one, except
the offer of Simms & Wathen, up to the time
of the sale of such mules on January 18, 1896, at $77.50
per head.'. The error consisting in this: The measure
of damages was the difference between the price offered and
the market value at Sheridan on December 27, 1895, if there
was such market value there; if not, at the nearest market.
This question and answer were not directed to this issue,
and were irrelevant.
"(c)
The circuit judge erred in allowing the question to the
witness S. L. Wallingford, and his answer thereto, as
follows: 'Q. Please state whether or not you could have
sold the mules for a better price at any time from the time
of the offer and the sending of the telegram to the time
you did sell. A. No.'. The error consisting in this:
The measure of damages was the difference between the price
offered and the market value at Sheridan on December 27,
1895, if there was such market value there; if not, at the
nearest market. The testimony offered was competent only in
the event that there was no market on that day at Sheridan
or elsewhere. Of this there was no evidence. The testimony
was therefore irrelevant.
"(d)
The circuit court judge erred in allowing the question to
the witness Sam Wallingford, and his answer thereto, as
follows: 'Q. Suppose you had received that telegram
when it ought to have been delivered, or in a reasonable
time after it should have been delivered, at Greenwood;
What would have been your answer to S. L. Wallingford as to
the sale of that car load of mules? A. My answer would have
been to sell the mules.' The error consisting in this:
Damages, to be recoverable, must be the proximate result of
the negligence alleged. They cannot be recovered upon
evidence of what a man would have done under certain
circumstances. That is too remote, contingent, and
speculative.
"(e)
The circuit judge erred in excluding the testimony of the
operator, M. M. Calhoun, as to replies made to him by T. F.
Riley, proprietor of the hotel where Wallingford was
boarding, when inquired of as to Wallingford's
whereabouts; it being submitted that, when an operator or
messenger goes to a hotel for the purpose of
delivering a message to the address, the declarations of
the proprietor of the hotel as to the whereabouts of the
addressee are competent upon the issue of negligence."
"(f)
The same objection is made in "f" to the
exclusion of the testimony of S. L. Perrin, messenger.
"a"
Assignment of Error. The record discloses the following:
"Mr. Graydon offered to read testimony taken de bene
esse of S.
L.
Wallingford, a plaintiff. Mr. Cothran: We interpose two
objections to the deposition: The first is that the notice is
not signed by the plaintiffs' attorneys; and the second
is that the certificate of the notary public does not state
where the examination takes place; and, again, that it is not
sealed by the notary public as it should have been. When he
signs, he signs, 'Newton Cowgill, Notary Public,',
without stating notary public where, and without seal. By the
Court: I don't think that ought to be thrown out for that
reason. I don't think it is a technical compliance.
(Exception by Mr. Cothran.)" All other objections were
waived. Hall v. Hall, 45 S.C. 166, 22 S.E. 818.
We will
first dispose of the objection that the notice was not signed
by the plaintiffs' attorneys. The complaint showed that
Messrs. Graydon & Giles were the plaintiffs' attorneys.
The affidavit of Mr. Giles attached to the notice showed that
he was one of the plaintiffs' attorneys. The notice has
at the bottom a blank space, and the words
"Plaintiffs' Attorneys." It appears upon the
face of the notice that the name of said firm was omitted by
inadvertence, which in no way misled the defendant or
prejudiced his rights, and the objection was properly
overruled. Bulwinkle v. Cramer, 30 S.C. 153, 8 S.E.
689; Moore v. Willard, 30 S.C. 615, 9 S.E. 273;
Kaufman v. Caughman, 49 S.C. 159, 27 S.E. 16;
Henderson v. Williams, 57 S.C. 1, 35 S.E. 261.
We will
next consider the objection that "the certificate of the
notary public does not state where the examination takes
place." The notice stated where the examination was to
take place, and the notary public, in his certificate, says
that he took the testimony in pursuance of the
notice. Furthermore, the statute does not require that the
certificate of the officer taking the testimony should state
where the examination took place.
The
next question that will be considered is whether his honor
the circuit judge erred in overruling the third objection
hereinbefore mentioned, when Mr. Graydon offered to read the
testimony. The certificate concludes as...
