Western Union Telegraph Co. v. Dorough

• Decision Date: 15 April 1919
• Docket Number: (No. 456.)
• Citation: 213 S.W. 282
• Parties: WESTERN UNION TELEGRAPH CO. v. DOROUGH.
• Court: Texas Court of Appeals

Page 282

213 S.W. 282

WESTERN UNION TELEGRAPH CO. v. DOROUGH.

(No. 456.)

Court of Civil Appeals of Texas. Beaumont.

April 15, 1919.

Rehearing Denied June 4, 1919.

Appeal from District Court, Harris County; J. D. Harvey, Judge.

Action by Clyde Dorough against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hume & Hume, of Houston, for appellant.

Gill, Jones, Tyler & Potter, of Houston, for appellee.

WALKER, J.

Appellee, plaintiff below, sued appellant, defendant below, for damages alleged to have resulted from defendant's failure to deliver promptly to plaintiff, at Houston, Tex., the following telegram:

                           "Marshall, Texas, Sept. 1, 1916
                  "Clyde Dorough, Houston, Texas: Will sell
                my interest. Meet me in Longview to-morrow
                second.                  Claude Dorough."
                

On August 30, 1916, plaintiff had sent from Houston the following telegram to his brother, Claude Dorough, at Marshall, Tex.:

"Sold cottage. Have to vacate at once. If still in notion selling me interest in business let me hear from you at once. Care Model Laundry."

In answer to this last telegram plaintiff's brother, Claude Dorough, on September 1, 1916, filed with defendant at Marshall, Tex., the telegram above copied. This message of September 1, 1916, was not promptly delivered. Claude Dorough, the brother of plaintiff, on September 1, 1916, owned a one half interest in a pool hall business located at Longview, Tex. The other half interest in said business was owned at said time by one S. L. Terry; the business then being conducted as a partnership by said Claude Dorough and said S. L. Terry. Claude Dorough had, prior to August 30, 1916, the date of the telegram as above copied, offered to sell to plaintiff a one-half interest in the said business, for the sum of $725, $600 in cash and the assumption by Clyde Dorough of one-half of a note amounting to about $250, and plaintiff's purpose in sending the message of August 30, 1916, was to ascertain if Claude Dorough was still willing to sell to plaintiff, and to indicate plaintiff's desire to purchase said one-half interest. Prior to August 30th Claude Dorough had represented to his brother, the plaintiff below, that in buying a one-half interest in the business he would get a one-half interest in the physical properties in the good name and good will, and that the partnership would continue as it had been running for several months, and that it was satisfactory with S. L. Terry to substitute the plaintiff in the partnership for the said Claude Dorough. In sending the message dated September 1st it was the purpose of Claude Dorough to indicate to plaintiff his willingness to sell his interest in the pool hall to plaintiff, and to convey to plaintiff for the consideration of $725 a one-half interest in the physical properties and in the established business. This message dated September 1st was not delivered to plaintiff nor its contents communicated to him until two or three days after September 2, 1916—that is, on Saturday following. Failing to hear from Claude Dorough in answer to his telegram of August 30th, plaintiff, on Saturday, communicated over the long-distance phone with Claude Dorough at Marshall, and learned from him that the message had been sent on September 1st, and that he had gone to Longview on the 2d to meet plaintiff and to close and consummate the sale of the business, and, further, on this Saturday Claude Dorough told plaintiff that he was still willing to sell to him, but he would have to see Terry again before doing so. Claude Dorough did see Terry, and Terry had changed his mind about taking plaintiff in the partnership, and refused to agree to the sale. Thereupon planitiff declined to purchase a half interest in the physical properties, because he did not want the property unless he could at the same time become a partner in the business.

Plaintiff pleaded the facts substantially as stated above, placing the market value of a one-half interest in the business at Longview at $1,500, alleging that he could and would have bought the same for $725 if the telegram had been promptly delivered, and that he would have become a partner in the business and would have acquired a half interest in all the properties, good will, and good name. He placed his damages at $775.

The case was tried by the court without a jury, the court rendering judgment for $775, with interest at the rate of 6 per cent. per annum from September 2, 1916, to date of judgment, December 13, 1917.

Appellant's first assignment of error is that plaintiff's first amended original petition states no cause of action. Under this assignment appellant advances this proposition:

"The petition disclosing on its face that plaintiff failed or refused to consummate the purchase merely because one S. L. Terry, a stranger to the contract of transmission, and without legal relation to the transaction of sale between plaintiff and Claude Dorough, changed his mind and refused to consent to Claude Dorough's sale of his own interest, and said consent of said stranger (Terry) being wholly irrelevant and without legal effect upon the right of said Claude Dorough to sell and without legal effect upon the right of plaintiff to buy (the established rule of law being that a sale by a partner of his interest dissolves the subsisting partnership ipso facto, and that a partner has the right to sell to a third person without the consent of a copartner), no actionable negligence is shown, and no cause of action is stated."

Plaintiff's petition alleged the facts substantially as we have given them above. Appellant's proposition that a sale by a partner of his interest dissolved the existing partnership ipso facto, and that a partner has a right to sell to a third person without the consent of his copartner, is correct, but in this case a part of the contract was that plaintiff was to take the place of his brother in the established partnership, and was to acquire not only a one half interest in the properties, but also in the business, the good will, and good name, and plaintiff further alleged that S. L. Terry, the owner of the other half interest, had agreed to this proposed sale on these conditions.

While, as asserted by appellant in its second proposition under this assignment, the plaintiff did not lose an opportunity to buy a half interest in the physical properties of the partnership, yet on the allegation in plaintiff's petition he did lose an opportunity to buy a half interest in an established and successful business, and this, as well as an interest in the properties, was what plaintiff was buying from his brother.

There being no special exception to plaintiff's petition, it is good against appellant's third proposition under this assignment, to the effect that plaintiff did not allege that the consent of Terry was necessary or vital to the consummation of the trade between plaintiff and his brother. Plaintiff did allege that Terry had consented to it, and, the trade not being consummated on September 2d, Terry had changed his mind, and thereby plaintiff lost his opportunity to buy into the business.

Appellant's fourth proposition under this first assignment is as follows.

"The petition states no cause of action, in that it affirmatively appears thereupon that the damages alleged were too remote, uncertain, contingent, conjectural, speculative, and not within contemplation of the parties to the contract of transmission."

We cannot agree to this construction of these telegrams. On their face they are sufficient to give notice to appellant that a business transaction was pending between Claude and Clyde Dorough, and that a failure to promptly transmit and deliver the same might probably result in pecuniary loss to the one or the other of these senders. Telegraph Co. v. Turner, 94 Tex. 304, 60 S. W. 432; Telegraph Co. v. Stiles, 89 Tex. 312, 34 S. W. 438; Telegraph Co. v. Edmondson, 91 Tex. 206, 42 S. W. 549; Telegraph Co. v. Sunset Construction Co., 109 S. W. 265; Telegraph Co. v. Mackenzie, 36 Tex. Civ. App. 178, 81 S. W. 581; Telegraph Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; Telegraph Co. v. Houston Rice Milling Co., 93 S. W. 1084; Telegraph Co. v. Williams, 137 S. W. 148; Telegraph Co. v. Smith, 124 S. W. 733; Telegraph Co. v. Robertson, 59 Tex. Civ. App. 426, 126 S. W. 629; Telegraph Co. v. Sheffield, 71 Tex. 570, 10 S. W. 752, 10 Am. St. Rep. 790; Telegraph Co. v. Carver, 31 S. W. 432; Telegraph Co. v. Edsall, 74 Tex. 329, 12 S. W. 41, 15 Am. St. Rep. 835; Telegraph Co. v. Haman, 2 Tex. Civ. App. 100, 20 S. W. 1133.

Appellant's fifth proposition under this first assignment is that the petition disclosing on its face that plaintiff's failure to purchase Claude Dorough's one-half interest in the business of said Claude Dorough and S. L. Terry was due to plaintiff's own unwillingness to purchase said half interest where he could have done so after September 2, 1916, had he chosen to do so; therefore the petition states no cause of action. This proposition cannot be sustained.

Appellant's third assignment of error is that there was no evidence of notice to defendant of the damages alleged.

What we have said above disposes of this assignment. In...