Western Union Tel. Co. v. Hearn

• Decision Date: 29 April 1890
• Citation: 13 S.W. 970
• Parties: WESTERN UNION TEL. CO. <I>v.</I> HEARN.
• Court: Texas Supreme Court

13 S.W. 970

WESTERN UNION TEL. CO.

v. HEARN.

Supreme Court of Texas.

April 29, 1890.

Commissioners' decision. Error from district court, Callahan county.

Stemmons & Field, for plaintiff in error.

ACKER, J.

There was a deed of trust against the property of L. Hearn for $25,000, which by its terms became due, at the option of the holder, upon default in the semi-annual payment of interest thereon for 10 days after the maturity thereof. A payment of interest became due on the 1st day of December, 1886, which Hearn was unable to meet in full; and it was agreed that he should have until the 28th day of January, 1887, to pay the balance of $500, or deposit it in bank. The money was deposited in bank on the 28th day of January, 1887; and the following message was prepared and signed by the cashier and delivered to Hearn, who promptly delivered it to the agent of the telegraph company at Baird, to be transmitted and delivered to E. E. Chase, the trustee and agent of the beneficiary of the deed of trust, at Fort Worth: 28th January, 1887. "To E. E. Chase, Fort Worth: Return note left by Hearn. Draw for five hundred dollars. A. G. WILLS, Cashier." The message, when delivered to Chase at Fort Worth, read as follows: "To E. E. Chase, Fort Worth: Return note left by Hearn. Order five hundred dollars. A. G. WILLS, Cashier." This suit was brought by Hearn to recover damages alleged to have resulted from the error committed in transmitting the message by substituting the word "order" for "draw." There was verdict and judgment for plaintiff for $25,000, from which the defendant prosecutes this writ of error. There are several important questions raised by the assignments of error, but we will consider only one of them, as it controls the disposition of the case.

By the terms of the contract for the transmission of the message, it was expressly stipulated that the defendant company should not be liable for errors in transmission of unrepeated messages beyond the amount of tolls paid thereon. The message was not repeated. We think it should now be considered settled in this state that this limitation of liability by special contract is valid and binding, and that no recovery can be had for an error committed in transmitting an unrepeated message, unless it be shown by direct testimony, or by the facts and circumstances of the case, that the error was caused by the misconduct, fraud, or want of due care on the part of the company, its servants or agents. Telegraph...