Western Union Tel. Co. v. Fellner

• Citation: 22 S.W. 917
• Parties: WESTERN UNION TEL. CO. v. FELLNER.
• Decision Date: 17 June 1893
• Court: Supreme Court of Arkansas

Page 917

22 S.W. 917

WESTERN UNION TEL. CO. v. FELLNER.

Supreme Court of Arkansas.

June 17, 1893.

Cross appeals from circuit court, Sebastian county; Edgar E. Bryant, Judge.

Action by Samuel Fellner against the Western Union Telegraph Company for a failure to transmit and deliver a message. Plaintiff had judgment for a part, only, of his claim, and both parties appeal. Reversed on defendant's appeal.

Rogers & Read, (Tabor, Humphreys & Silverman, of counsel,) for plaintiff. Clendening, Mechem & Youmans, for defendant.

HUGHES, J.

This is an appeal from a judgment for damages against the telegraph company for failure to deliver a message sent by the appellee, Fellner, over its line. There is a cross appeal by Fellner. The case was tried by the court without a jury, and the court made the following findings of facts and declarations of law: "That on the night of August 26, 1891, plaintiff delivered to defendant, in Ft. Smith, Ark., the following message: `Henry Clews & Co., Broad St., N. Y.: Buy me 100 Burlington & Quincy common stock, and 10,000 Santa Fe incomes. Wire price. S. Fellner.' That said message was an order to buy for plaintiff 100 shares Chicago, Burlington & Quincy Railway common stock, and $10,000 Atchison, Topeka & Santa Fe income bonds. That defendant received said message, and, for 75 cents paid by plaintiff, agreed to transmit it to Henry Clews & Co., which it negligently failed to do. That plaintiff inquired frequently at defendant's office for answer to his message, and receiving none, on Saturday, August 29, 1891, telegraphed Henry Clews & Co., asking if they had filled his order, to which they replied, by telegram, that they had not. That at the time of the receipt of this message it was too late in the afternoon of Saturday for plaintiff to place his order before Monday, August 31, 1891. That plaintiff made no purchase of the stocks and bonds. That Henry Clews & Co. never received the message delivered by plaintiff to defendant on August 26, 1891. That said Henry Clews & Co. had in their hands $2,000 belonging to plaintiff, and they had agreed with plaintiff to advance money, and buy for plaintiff stocks or bonds, or both, whenever so ordered by him, charging him 6 per cent. per annum on all sums advanced, they holding the $2,000 to secure the same, and prevent loss to themselves, and that if they had received the night message of August 26, 1891, they would, on the following day, have purchased for the plaintiff the property mentioned therein. That on Monday, August 31, 1891, the price on exchange at New York of the 100 Chicago, Burlington & Quincy had advanced $550 over its price on August 27, 1891, and that the same has continued steadily to advance in price to the present time. That the 10,000 Santa Fe income bonds had advanced, on August 31st, $312 over their price of August 27, 1891, but on September 1, 1891, they depreciated, and could have been had at the same price that they had sold for on August 27th. From September 1st, however, they had steadily increased in value to the present time. The premises considered, the court declares the law to be that, by defendant's negligence in not transmitting plaintiff's telegram, plaintiff has sustained proximate and certain damages in the sum of $550 from his loss of a purchase of the Burlington & Quincy stock, but plaintiff has not sustained any certain damage from his loss of a purchase of the Santa Fe incomes; wherefore, the court finds the issues for plaintiff, and assesses his damage at $550. It is, therefore, by the court, considered, ordered, and adjudged that plaintiff, Samuel Fellner, do have and recover of and from the defendant, Western Union Telegraph Company, the sum of $550, together with his costs herein laid out and expended."

Is the appellee entitled to more than nominal damages? The case of Telegraph Co. v....