Western Union Telegraph Co. v. Tersheshee, 6 Div. 702

• Decision Date: 28 February 1935
• Docket Number: 6 Div. 702
• Citation: 230 Ala. 239,160 So. 233
• Parties: WESTERN UNION TELEGRAPH CO. v. TERSHESHEE.
• Court: Alabama Supreme Court

160 So. 233

230 Ala. 239

WESTERN UNION TELEGRAPH CO. v. TERSHESHEE.

6 Div. 702

Supreme Court of Alabama

February 28, 1935

Rehearing Denied April 4, 1935

Appeal from Court of Common Claims, Jefferson County; Sam C Pointer, Judge.

Action by Emel Tersheshee against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals, under Code 1923, § 7326.

Affirmed.

Where one of two innocent persons must suffer, burden should fall on the one who made mistake or caused condition.

The agreed statement of facts upon which the case was tried is as follows:

"It is agreed between the parties hereto that the following is a full and complete statement of all the facts in the above styled case, and it is agreed that judgment of the court is to be entered upon these facts in this court and on appeal.

"On and prior to the 14th day of September, 1933 one G.T Solomon was indebted to the Morris Plan Bank of New Orleans, Louisiana, for a portion of the purchase price of an automobile, the conditional sale contract of which was held by the Morris Plan Bank, the automobile having been taken from the possession of said Solomon by the agents of the Morris Plan Bank in California. The said Solomon got in touch with the said Tersheshee and requested him to make satisfactory arrangements with said Morris Plan Bank to release said car, the said Solomon at the time not having the money, and requested said Tersheshee to settle the claim for him and he would reimburse Tersheshee later. Said Tersheshee immediately got in touch with the said bank and had his dealings with a Mr. Pitkin, and said Pitkin, acting for said bank, agreed to accept $90.00 in full settlement of the amount due on the purchase price of said automobile the said Pitkin of the said Morris Plan Bank in liquidation having wired said Tersheshee on September 14, 1933 as follows:

" 'I am wiring our agent Los Angeles accept $90.00 in full settlement Unless amount paid to him tomorrow car will be repossessed and sold Can allow no additional extension of time. This final. Morris Plan Bank in liquidation. Pitkin.'

"On September 18th said Tersheshee sent by Western Union Telegraph Company a money order payable to Morris Plan Bank in the amount of $90.00, paying defendant the amount charged for sending said money. At the time plaintiff delivered to defendant said $90.00 for transmission he requested defendant's agent to require of the defendant's New Orleans office that the money be delivered to the bank only after obtaining from the payee a release of all papers in connection with said claim and a receipt in the following form:

" 'In full settlement of claim against G.T. Solomon on his car.'

"Plaintiff at said time and as a part of the contract of transmittal of the money order instructed the Western Union Telegraph Company's office in Birmingham to cancel the money order unless such papers and a receipt in said form was given.

"On the same date, September 18, the bank requested the Western Union Telegraph Company's office in New Orleans to hold the money until the next day, September 19, so that they might adjust the matter to clear themselves when they should sign the receipt requested by Tersheshee, and defendant on September 18 notified plaintiff to this effect by written message delivered to him.

"On or about the 28th day of September, 1933 the said Tersheshee received a message from the said Solomon stating that the bank still had his car tied up and was about to sell it and said Tersheshee on said 28th of September sent the following telegram through the Western Union Telegraph Company to said bank:

" 'On receipt of your wire 15th I wired Solomon that you instructed agent to accept $90.00. Full settlement. Solomon offered agent $90.00. Not accepted. On 18th I wired you $90.00. No response. Solomon wires agent Los Angeles threatens to sell automobile. Release automobile immediately and advise. Hold you responsible. Emel Tersheshee.'

"In response to the foregoing message Tersheshee on the same date received the following telegram through the Western Union Telegraph Company:

" 'Will accept $90.00 net to us. Solomon must pay all expenses. Morris Plan Bank in liquidation Pitkin.'

"On same date Tersheshee sent the following message by the defendant's wires:

" 'Solomon has no money. I can raise only $20.00 more Best I can do Rather than to go to law with this matter I will send you the $20.00 if you pay all expenses to agent Advise immediately Emel Tersheshee.'

"On September 29, 1933 Tersheshee received through the defendant the following telegram:

" 'Retel Accept additional $20.00 sent not later Saturday morning Morris Plan Bank in liquidation.'

"On September 30, 1933 at 9:55 a.m. Tersheshee sent by defendant a money order payable to the Morris Plan Bank in the sum of $20.00, paying defendant the charge required for sending the same. The money order was accompanied by the instruction to defendant that defendant was to obtain the following receipt from said bank before paying the money:

" 'Received of Emel Tersheshee and G.T. Solomon $110.00 in full settlement of the G.T. Solomon account. We are to pay the attorneys fees and all expenses out of said $110.00 and have car released to Solomon immediately.'

"Said receipt to be mailed to the office of the defendant at Birmingham, and to be delivered by defendant to the said Tersheshee. Tersheshee paid defendant additional charged for transmitting said proposed receipt.

"Later on in the same day, 10:43 a.m., Tersheshee received message from the said Solomon informing Tersheshee that Solomon on his own initiative had obtained release of said car, and had gotten his automobile back and instructed Tersheshee to withdraw or cancel the money order that had been sent to said bank at New Orleans, to get the money back as he had made other arrangements. And on the same day, September 30, 1933, at about 4:30 p.m. plaintiff requested the agent of the defendant at Birmingham to cancel said money orders of September 18 and September 30, if not paid. Defendant immediately wired its New Orleans agent to cancel said money orders, but was advised by message sent from New Orleans at 4:42 p.m. that the money orders had been paid to the

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