Western Union Telegraph Co. v. Woods

• Decision Date: 06 November 1924
• Docket Number: (No. 2927.)
• Parties: WESTERN UNION TELEGRAPH CO. v. WOODS et al.
• Court: Texas Court of Appeals

266 S.W. 179

WESTERN UNION TELEGRAPH CO. v. WOODS et al.

(No. 2927.)

Court of Civil Appeals of Texas. Texarkana.

November 6, 1924.

Appeal from Hunt County Court; Olin P. McWhirter, Judge.

Action by C. H. Woods and others against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

C. H. Woods & Co. were engaged in buying and selling cotton, with principal office during the month of November, 1921, in Ladonia, Tex. The firm had an agent in Fall River, Mass., for the purpose of making sale of the cotton bought in Texas and elsewhere. In transmission of certain telegrams concerning the sale of cotton, from the agent to his principals and from the firm to the agent, the telegraph company made an error resulting, as claimed, in loss to C. H. Woods & Co. To recover compensation for the loss they sued the Western Union Telegraph Company, filing their petion in the county court of Hunt county, Tex., on August 16, 1922. The telegraph company pleaded, besides denial, that the messages were each unrepeated messages, and that they were accepted for transmission by it under the condition and stipulation that the company would not be liable for any damages in case a claim was not presented in writing within 60 days after the message was filed with the company for transmission. The company further alleged that no such claim in writing was filed within the specified time. By supplemental petion the plaintiffs pleaded estoppel against the telegraph company from urging the defense of failing to file a claim for damages within 60 days. In reply the telegraph company, besides denial, filed a demurrer on the ground that estoppel by waiver of the stipulation mentioned could not legally be asserted against the defendant.

The case was tried before the court without a jury, and in keeping with special findings of fact a judgment, was entered in favor of the plaintiffs.

The court made the following findings, as material to state:

"I find that on November 10, 1921, plaintiffs obtained and had an option on 80 bales of cotton located in Quinton, Okl., owned by the Quinton Gin Company; and said Quinton Gin Company, the owner of said cotton, agreed to sell said 80 bales of cotton to plaintiffs at 18.75 cents per pound landed at Providence, R. I., provided plaintiffs exercised said option and purchased said cotton at said price during said day. That during the forenoon of said day plaintiff W. A. Ross wired C. L. Barker, plaintiffs' agent at Fall River, Mass., requesting best price obtainable at that point for said 80 bales of cotton. That, in reply to said request, the said C. L. Barker delivered to defendant's agent at Fall River, Mass., the following telegram:

"`W. A. Ross, Ladonia, Texas. Am offered firm nineteen fifty for eighty KOTB landed Providence, Answer quick.'

"That said message, as transmitted and delivered to plaintiff Ross at Ladonia, Tex., read, instead of `nineteen fifty,' `fifteen forty.' I find that plaintiffs paid the defendant, or agreed to pay the defendant, for sending said message, the usual and customary charges for unrepeated messages.

"I find that after the receipt of the above message by plaintiff Ross other messages were exchanged between him and the said C. L. Barker at Fall River, in which it was shown both to plaintiffs Ross and Barker that the defendant had made an error in the transmission of said message. I find that the plaintiff Ross upon receipt of this information secured an extension of the option on said 80 bales of cotton until November 11, 1921. That the owner of said cotton agreed to give plaintiffs an extension of the option on said (cotton) during the following day, to wit, November 11, 1921. That the owner of said cotton agreed to sell the same to plaintiffs for 18.75 cents per pound landed at Providence, R. I., provided plaintiffs exercised the option and purchased the cotton during the day of November 11, 1921. I further find that as soon as plaintiffs obtained the extension of said option plaintiff Ross delivered, on November 11, 1921, to the defendant's agent at Ladonia, Tex., the following telegram:

"`C. L. Barker, Fall River, Mass. Now able to close deal at price mentioned. Can you confirm to-night or before market opens to-morrow?'

"That said message, as transmitted and delivered to the said C. L. Barker, plaintiffs' agent, at Fall River, Mass., read: `Not able to close deal at price mentioned,' etc., instead of `Now able to close deal at price mentioned,' etc. That plaintiffs paid the defendant, or agreed to pay the defendant, the usual and customary charges for unrepeated messages for handling and sending said message.

"I find that, by reason of the mistakes in said telegrams made by the defendant's agents, plaintiffs were unable to exercise their option and to purchase the cotton at the price stipulated in said option contract.

"I find that, if said messages had been properly and correctly transmitted, plaintiffs would have exercised their option, would have purchased said cotton at the price fixed in said option agreement, and would have sold the same on the market at Fall River, Mass., at a net profit of three-fourths of a cent per pound, or an aggregate net profit of $300.

"I find that the damages sustained by plaintiffs amounted to the sum of $300, and that the negligence on the part of defendant's servants and agents in handling, transmitting, and sending said messages was the proximate cause of plaintiffs' said damages. I find that defendant's agents and servants were guilty of gross negligence in handling, transmitting, and sending each of said messages.

"I find that each of said telegrams above set out contained, among other things, the following provisions on the back thereof:

"`To guard...