Western Union Telegraph Co. v. Sharp

• Decision Date: 29 March 1928
• Docket Number: (No. 3538.)
• Citation: 5 S.W.2d 567
• Parties: WESTERN UNION TELEGRAPH CO. v. SHARP.
• Court: Texas Court of Appeals

5 S.W.2d 567

WESTERN UNION TELEGRAPH CO. v. SHARP.

(No. 3538.)

Court of Civil Appeals of Texas. Texarkana.

March 29, 1928.

Appeal from District Court, Hunt County; Grover Sellers, Judge.

Action by Ed Sharp against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Appellee and one B. B. Berdo were dealers in cattle — appellee at Wolf City, Tex., and Berdo at Washington, Iowa. May 27, 1926, appellee, who before that time had sold and shipped cattle to Berdo, delivered to appellant at Wolf City a message for transmission and delivery to Berdo at Washington as follows:

"Can furnish car of real Jersey cows, three to seven, recommended to be fresh in June, July, Aug. Looks like they will average with last load or better at fifty dollars. Can load out in next few days."

In the message as delivered to Berdo the word "fifty" had been changed to "twenty." May 28, 1926, Berdo, in reply to the message, wired Sharp as follows:

"Ship as soon as you can load of cows three to seven years old as you described them in your night letter of May 27. Let me know just when you can get them out, as I have an order for them."

June 2, 1926, appellee shipped the cattle (36 head) from Wolf City, and on the same day sent a bill of lading covering the same, with his draft on Berdo for $1,792.50, the purchase price of the cattle, attached, to a bank in Washington. June 7, 1926, Berdo wired Sharp as follows:

"Car cows and draft arrived to-day. Cows not as described. Unable to understand amount of draft. Your telegram May twenty-seventh quoted cows twenty dollars. These cows don't suit me and cannot use at amount of draft. Advise by wire what to do with cows."

June 8, 1926, appellee, in reply wired Berdo as follows:

"Telegram went out from here pricing cows at fifty dollars. Get them on pasture until I get there."

Leaving Wolf City at once after he so wired Berdo, appellee reached Washington June 10, 1926, and found that Berdo, in compliance with his request, had unloaded the cattle, and was holding them in a pasture. After inquiry to ascertain the value of the cattle on the market at Washington, appellee sold them to Berdo for $35 a head. Later appellee commenced this suit against appellant to recover as damages $540, the difference in the value of the cattle at $50 a head and their value at $35 a head, and $164.97, the expenses of his trip to Washington and time lost in making same. It appears in the record that in response to special issues submitted to them the jury found as follows: (1) The actual value of the cows when they arrived at Washington was $50 per head. (2) Appellee exercised "reasonable diligence and ordinary care in getting the best price he could for the cattle under the circumstances." (3) Berdo would have accepted the cattle and paid $50 per head for same had the telegram from appellee as delivered to him stated $50 per head. (4) The message from appellee offering to sell the cattle to Berdo was written on the "standard telegram blank," which, it seems, contained a stipulation limiting the amount the sender might recover for a breach of the contract it evidenced to $500. (5) The expenses of the trip to Washington reasonably incurred by appellee amounted to $100. (6) The reasonable value of the time he lost in making the trip was $30. The findings warranted a judgment for $670 in appellee's favor, but, because of the stipulation limiting the amount recoverable under the contract, the judgment rendered was for only $500 and interest from July 11, 1926, the day appellee sold the cattle after he reached Washington.

Wm. H. Pippen and John W. Miller, both of Dallas, and Francis R. Stark, of New York City, for appellant.

Clark & Clark, of Greenville, for appellee.

WILLSON, C. J. (after stating the facts as above).

It appears from a bill of exceptions in the record that, when appellee offered as evidence an instrument in writing purporting to be the message he sent May 27, 1926, as it was delivered to Berdo, and to be an offer to sell the cattle at $20 a head, appellant objected thereto on the ground that appellee on his cross-examination as a witness in his own behalf had stated that the instrument was "just a copy." If the ruling was erroneous, the fact that it was does not appear from the showing in the bill of exceptions. For anything to the contrary appearing therein, other evidence before the court may have overwhelmingly shown that the instrument was the one delivered to Berdo, and not a copy thereof, in which event it is plain it would have been error to sustain the objection on the ground stated. San A. & A. P. Ry. Co. v. Lester (Tex. Civ. App.) 84 S. W. 401; Id., 99 Tex. 214, 89 S. W. 752; Dowdy v....