Western Union Telegraph Co. v. Littlejohn

• Decision Date: 20 May 1895
• Citation: 18 So. 418,72 Miss. 1025
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH COMPANY v. A. M. LITTLEJOHN

18 So. 418

72 Miss. 1025

WESTERN UNION TELEGRAPH COMPANY v. A. M. LITTLEJOHN

Supreme Court of Mississippi

May 20, 1895

FROM the circuit court of the first district of Coahoma county HON. R. W. WILLIAMSON, Judge.

Action begun October, 1889, by A. M. Littlejohn against the Western Union Telegraph Company to recover for loss sustained through the delay of defendant in the transmission and delivery of certain telegrams. The declaration merely alleges that plaintiff delivered to the defendant's operator at Clarksdale, on July 1 and 3, 1889, two certain messages for transmission to A. M. Hogin, Memphis, Tenn., and that on July 3 and 10, 1889, A. M. Hogin delivered to defendant, in Memphis, Tenn., three messages to be transmitted to plaintiff at Clarksdale, Miss.; that these messages were negligently delayed by defendant, to the damage of plaintiff $ 662.50. For a statement of the damage the declaration refers to the account filed with it. The itemized account is as follows "Actual loss on one hundred shares American Cotton Oil trusts, $ 412.50; actual loss on fifty shares of same, $ 250 statutory penalty on five messages, $ 125."

Plaintiff at the time of the transactions in question, was in Clarksdale, Miss. and Hagin was a broker in Memphis, Tenn. They had, during the month of July, 1889, repeated, if not daily, transactions with each other by means of telegrams relating to purchases and sales of stock of the American Cotton Oil Company, Littlejohn being the buyer or seller, and Hagin acting as a mere broker. The telegrams, which were in cipher, had reference to stock in said company. The first was one from plaintiff to Hagin, and, translated, was as follows "Close purchase fifty trusts. Hold sale one hundred. Keep me well posted." This was delivered by plaintiff to defendant's operator at Clarksdale for transmission on the morning of July 1, 1889. On the morning of July 3, plaintiff having received no reply from Hagin, sent him this message: "We telegraphed you, but have no reply, on July 1. Cancel order in full. Telegraph state of the market, please." At 4 o'clock P.M. of the same day, plaintiff received, under the same cover, from Hagin, two messages, one reading: "Close fifty trusts 55 1/4 opening," the other: "Trusts opened 55 5/8. Now 56 5/8. No opinion." The first of these messages was delivered by Hogin to defendant's operator, in Memphis, on the morning of July 2, but not sent until after receipt of the second one on the next day, when, without any mention of the delay, both were sent on, and delivered to plaintiff at the same time. Still another cipher message on the same subject was sent by Hogin to plaintiff on July 10, but the record is silent as to its purport, and it is included, presumably, as the basis of a claim for the statutory penalty of $ 25 for its delay. It does not seem to be denied that there was unreasonable delay in transmitting and delivering these telegrams.

As intimated in the opinion, the testimony as to how the delay caused the loss is meager. It appears that it arose from fluctuations in the value of the stocks, to which the telegrams referred. Hogin testified that, because of the delay of one of the first telegrams from plaintiff, there was a difference in price of the stocks of about $ 250, and that plaintiff lost that amount by the transaction which it directed. Plaintiff testified that, by reason of the delays in the telegrams, he lost about $ 500, which he had to pay, and that, if he had received the telegrams promptly, he would have made more than $ 100; that in the trade directed to be made by the first telegram he lost $ 212.50, and that in the transaction of July 3, he lost $ 400, for which amounts Hogin made draft on him, and which he paid. He referred for a showing of his loss to statements of account against himself, made up by Hogin at the time, and exhibited in the record, but these statements are not explained, and are, for the most part, unintelligible.

It is contended by defendant that the transactions between plaintiff and Littlejohn constituted a dealing in futures within the meaning of the act of March 7, 1882 (Laws, p 140), making it unlawful to deal in ...