Western Union Telegraph Co. v. Robertson Bros.

• Court: Texas Court of Appeals
• Writing for the Court: Rice
• Citation: Western Union Telegraph Co. v. Robertson Bros., 133 S.W. 454, 63 Tex. Civ. App. 239 (Tex. App. 1910)
• Decision Date: 07 December 1910
• Parties: WESTERN UNION TELEGRAPH CO. v. ROBERTSON BROS.

133 S.W. 454

WESTERN UNION TELEGRAPH CO. v. ROBERTSON BROS.

Court of Civil Appeals of Texas.

December 7, 1910.

Rehearing Denied January 11, 1911.

Appeal from Milam County Court; John Watson, Judge.

Action by Robertson Brothers against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

N. L. Lindsley, for appellant. U. S. Hearrell, for appellee.

RICE, J.

It appears from the evidence that J. L. Robertson, a member of the firm of Robertson Bros., cattle buyers, on the 16th of April, 1909, had contracted to purchase a certain lot of cattle at Silsbee, Tex., which he intended to ship to Cameron, Tex., for sale; that in order to pay for same, it became necessary for him to do so by check on the Iola State Bank, and that for this purpose he caused the Silsbee State Bank to send a telegram to the Iola State Bank, asking whether they would honor the check of Robertson Bros. for $2,000; that in reply to said message the Iola State Bank filed with appellant's agent at said place a telegram, addressed to the Silsbee State Bank, stating that they would honor Robertson Bros.' check for $2,000, but on account of an error in transmission, said telegram, when received at Silsbee, read: "Will honor Robertson Brothers check for $200." That upon receipt of this message, said J. L. Robertson, believing that there was a mistake therein, requested appellant's agent at Silsbee to repeat the message, offering to pay the charge therefor. Said agent, however, declined to do so, on the ground that it had already repeated the message, and that said $200 was reported correct by the Beaumont agent of said company; that on account of said mistake in said message, appellee was unable to pay for the cattle he had contracted for, whereby he suffered loss in profits that he would otherwise have made, and the credit and standing of said firm at Silsbee was injured and impaired, and this suit was brought to recover damages therefor. Appellant answered by general and special exceptions, a general denial, pleas of contributory negligence on the part of plaintiff that the damages claimed were too remote, and that the defendant had no notice of the expected profits which plaintiffs claimed they would have made. A jury trial resulted in a verdict and judgment in behalf of appellees for the sum of $400, from which judgment this appeal is prosecuted.

The first error assigned complains of the action of the court in overruling defendant's first application for a continuance. This application was asked on the ground of surprise at the new matter set up in appellee's amended petition, to the effect that when plaintiff was shown the incorrect telegram, he went to defendant's operator at Silsbee and stated that there was a mistake in the message, claiming that the same should have read $2,000 instead of $200, and offered to pay the necessary charge to have the same repeated, but that the agent replied that she had already repeated the message, and that it was useless to do so again. The application further recited that this amended petition was handed to the defendant's attorneys on October 11, 1909, the day this case was set for trial, but was not filed until the 13th of October, the day before the case was tried. It also recited that the defendant had made all efforts in its power to secure the evidence made necessary in its behalf by this amendment, but had been unable to do so, and that it could not go safely to trial without such evidence. The court approved the bill with certain qualifications, which we deem unnecessary to state. It will be noted that this application wholly fails to state that appellant has in its possession or knows of any evidence that will refute the matters set up in plaintiffs' amended petition, except by mere inference. This is not a statutory, but an equitable, application, and we think it was necessary to show therein, by apt averment, that there was evidence which it could obtain by postponement of the trial, going to negative and contradict the matters set up in plaintiffs' amended petition, and that a failure to do so rendered the application bad,...