Western Union Telegraph Co. v. Spivey

• Decision Date: 05 December 1904
• Citation: 83 S.W. 364
• Parties: WESTERN UNION TELEGRAPH CO. v. SPIVEY.
• Court: Texas Supreme Court

83 S.W. 364

WESTERN UNION TELEGRAPH CO. v. SPIVEY.

Supreme Court of Texas.

December 5, 1904.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by M. C. Spivey against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Questions certified by the Court of Civil Appeals to the Supreme Court. Questions answered.

Geo. H. Fearons and N. L. Lindsley, for appellant. Wheeler & Cunningham, for appellee.

WILLIAMS, J.

Certified questions from the Court of Civil Appeals for the Fifth District as follows:

"Appellee instituted this suit originally in the justice's court of Fannin county, Texas, to recover damages alleged to have been sustained by reason of an error committed by appellant in the transmission of a telegraphic message. An appeal was taken from the judgment rendered in the justice's court to the county court, where judgment was rendered for appellee against appellant for the sum of $165, and from that judgment an appeal was prosecuted to this court.

"The facts are that appellee lived at Bonham, and was desirous of purchasing a stock of goods at Whitesboro owned by the Davis Furniture Company, and sent his agent, R. H. Cumby, there to examine the stock and ascertain the price, etc. The owner of the goods demanded seventy-five cents on the dollar of the invoice of said goods, and Cumby communicated that fact to appellee. In response to this communication, appellee delivered to appellant, at Bonham, Texas, to be transmitted to his agent, Cumby, at Whitesboro, the following message: `R. H. Cumby, care Mr. Davis Furniture Company, Whitesboro, Texas. Sixty five cents is last and best offer if won't take that come back have another deal. [Signed] M. C. Spivey.' The message, when delivered to Cumby, had been changed, and read (omitting the address): `Seventy five cents is the last and best offer if won't take that come back have another deal. [Signed] M. C. Spivey.' The message was intended, and so understood, to mean that Cumby was to offer sixty-five cents on the dollar for the stock of goods, according to the amount of the invoice thereof, and no more; but, the word `sixty' having been changed to `seventy' in the transmission thereof, Cumby was misled, and caused to believe that appellee was willing to pay seventy-five cents on the dollar for said goods, and that he was authorized to offer that amount for the goods. By reason of the mistake in the telegram, Cumby was induced and caused to offer, in further negotiations for the purchase of the goods, seventy cents on the dollar of their invoice price, and succeeded in getting them for that sum. The goods invoiced $3,300, and appellee paid $2,310 for them; being $165 more than he had instructed his agent, Cumby, to pay for them, according to his telegram as delivered to ...