Western Union Tel. Co. v. Fatman
| Decision Date | 06 January 1885 |
| Citation | 73 Ga. 285 |
| Parties | THE WESTERN UNION TELEGRAPH COMPANY v. FATMAN. |
| Court | Georgia Supreme Court |
September Term, 1884.
1. Where a telegraphic message was sent by cable, and suit was brought for damages resulting from a failure to deliver it after its receipt at its point of destination, within a reasonable time, the copy message written by the telegraph operator at the point of destination and eventually delivered was admissible in evidence, without producing the original message written out at the point of transmission, there being no claim that the message delivered differed from that sent.
2. Where a ship broker, whose office was near that of a telegraph company, had sent other messages by cable through such company, and a cipher message from a company in Liverpool was sent to him, there was enough to put the telegraph company on notice that it was a matter of important commercial business, and required reasonable and ordinary dispatch in delivery; and the party injured by a failure to use such dispatch would not be limited to recovering nominal damages.
( a. ) Telegraph companies and common carriers are not identical as regards notice, or notice of value of the dispatch.
( b. ) If a telegraph company receives a cipher dispatch, and undertakes to carry it and deliver it to the person to whom directed, in consideration of money paid to them, it is their duty to make such delivery within a reasonable time.
3. If a message sent by cable was received at the office of the telegraph company at the point of destination at 10:24 A. M and was not delivered until 11:55 A. M., the office of the person to whom it was directed being within five minutes' walk from that of the company, and, in the meantime, loss occurred by reason of this failure to deliver, there was enough to warrant the jury in finding that the delay was unreasonable.
4. Where, by reason of the failure on the part of a telegraph company to deliver a message directed to a ship broker, be lost a contract, by which he would have made certain commissions had the message been promptly delivered, a recovery of the amount of such commissions was not too remote or speculative a measure of damages.
Telegraph Companies. Damages. Notice. Contracts. Before Judge HARDEN. City Court of Savannah. February Term, 1884.
Fatman brought suit against the Western Union Telegraph Company for $499.50, alleging, in brief, as follows: He was a commission merchant, and desired to furnish a vessel to carry cotton to Barcelona, and for that purpose communicated with W. H. Scott & Company, his agents in Liverpool, so as to get the vessel and furnish it on commission. They sent to him, in reply, the following cipher dispatch:
The meaning of this was:
Had this been delivered with reasonable speed by defendant after its reception in Savannah, plaintiff could have furnished the Troubadour to the person desiring it, and made his commissions thereon; but its delivery was negligently delayed, and plaintiff was damaged.
Defendant pleaded the general issue, and that the message was in cipher and did not put defendant on notice of its value, and that the damages claimed were not in contemplation of the parties when the contract was made.
Nisbet, a witness for the plaintiff, testified as follows:
I am a cotton merchant in Savannah; engaged in the business fifteen years; in January, 1883, I informed Fatman I could use a steamer of 1,000 tons to load in Savannah for Barcelona in February or March, and after his telling me that he had reason to think he could get such a vessel, I made him an offer for it; he was given until 11 o'clock, January 12th, to accept, and ten minutes more were given by special request; the offer was verbal; when this offer was made to Fatman, I was offered by Minis a steamer answering my requirements, although larger; but as Fatman had gone to some expense in telegraphing, I wanted to give him an opportunity to secure the business; I told Minis that his steamer would be taken if Fatman did not answer by 11:10; received no answer from Fatman at time stipulated, and closed with Minis; about an hour and a half later, Fatman offered the steamer, which was declined. The contract was oral, and was a mere offer; I was under contract up to a certain time; Fatman was not.
There was also other evidence showing that the telegram was received at defendant's office at twenty-four minutes after ten o'clock A. M.; that the telegraph office was four and a half minutes' walk from Fatman's office; that the message was delivered at 11:55 A. M., and was an answer to a previous telegram, plaintiff having been in telegraphic correspondence about the matter for about eight days; that " Witwal" was the registered address of Fatman at defendant's office; that the commissions which he would have made, if he had secured the vessel for Nisbet, would have amounted to $499.50, but his only actual expenditure was for the transmission of messages. The delivery was during ordinary business and banking hours.
The jury found for plaintiff $499.50. Defendant moved for a new trial, on the following among other grounds:
(1.) Because the court admitted in evidence before the jury a certain paper addressed to " Witwal," purporting to be the telegram received by the plaintiff (the alleged delay in the delivery of which is complained of), over the objection of defendant's counsel, that the same was a copy, and that no proof was introduced or offered that the said telegram was the identical telegram which the plaintiff charged in his declaration was delivered by his agents in Liverpool to the defendant for transmission.
(2.) Because the court permitted the witness, Schroder, over the objection of defendant's counsel, to translate the said paper (which was in cipher) to the jury.
(3.) Because the court overruled the defendant's motion for a non-suit, which motion was on the following grounds:
( a. ) That it appeared from the evidence that the telegram, the delay in the delivery of which is complained of, was in cipher, obscure and unintelligible, and that no notice of its contents or value had been given to the defendant, and therefore the plaintiff was not entitled to recover in this action more than nominal damages, to-wit: the tolls paid for transmission, which had already been tendered and refused.
[On the message blanks of defendant were printed the following conditions:
" To guard against mistakes on the lines of this company, the sender of every message should order it repeated, that is, telegraphed back from the terminus of said lines to the original place. For such repeating, the sender will be charged, in addition, one-half the usual tolls of this company on that portion of its lines over which such message passes.
This company will not assume any responsibility in respect to any message beyond the terminus of its own lines; and it is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in transmission or delivery, or for non-delivery to the next connecting telegraph company, of any unrepeated message, beyond the amount of that portion of the charge which may or shall accrue to this company out of the amount received from the sender for this and the other companies, by whose lines such message may pass to reach its destination; and that this company shall not be liable for mistakes in the transmission or delivery, or for non-delivery, to the next connecting telegraph company, of any repeated message, beyond fifty times the extra sum received by this company from the sender for repeating such message over its own lines, nor for errors in cipher or obscure messages. And this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company to reach its destination.
This company is not to be liable for damages in any case where the claim is not presented in writing within thirty days after the sending of the message." ]
( b. ) That the evidence failed to show any valid and binding contract between the plaintiff and his alleged correspondent in Liverpool, by which they authorized him to accept the offer of John Nisbet to charter the vessel, " " Troubadour," and that without the proof of such a valid and binding contract, there could be no legal damages resulting to the plaintiff by reason of a delay in the...
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