Western Union Telegraph Co. v. Wilhelm
| Decision Date | 16 June 1896 |
| Docket Number | 6757 |
| Parties | WESTERN UNION TELEGRAPH COMPANY v. O. O. WILHELM |
| Court | Nebraska Supreme Court |
ERROR from the district court of Wayne county. Tried below before JACKSON, J.
AFFIRMED.
Estabrook & Davis, for plaintiff in error:
The district court erred in overruling the motion to make the petition more definite and certain. (Goodwin v Walls, 52 Ind. 268; Elliot, Appellate Procedure, sec 665.)
The court erred in giving instructions 3 and 4 on its own motion. (Omaha Coal, Coke & Lime Co. v. Fay, 37 Neb. 75; Wasson v. Palmer, 13 Neb. 376; School District v Foster, 31 Neb. 501.)
Under the evidence it is perfectly plain that the consummation of the trade depended upon its approval by Wilhelm. In fact he was asked by the telegram to come to Omaha. It is perfectly apparent that he never did give any authority to Malmgren to make a binding contract. The trade depended upon his approval. There is no presumption that he would have been satisfied. Damages depending upon a contingency of this kind are too remote and lack the element of certainty. (Clay v. Western Union Telegraph Co., 81 Ga. 285; Baldwin v. United States Telegraph Co., 45 N.Y. 744; Beaupre v. Pacific & Atlantic Telegraph Co., 21 Minn. 155; Western Union Telegraph Co. v. Hall, 124 U.S. 444; Hibbard v. Western Union Telegraph Co., 33 Wis. 558.)
A. A. Welch and W. L. Rose, contra.
The facts are stated by the commissioner.
O. O Wilhelm sued the Western Union Telegraph Company in the district court of Wayne county, alleging in his petition, in substance, that on the 29th of January, 1892, Malmgren & Lovegren, residing in Omaha, Nebraska, were his agents; that on that date they delivered to the telegraph company at Omaha a dispatch in words and figures as follows:
That the telegraph company received this message and agreed to correctly transmit and deliver it to Wilhelm at Wayne, Nebraska; that prior to the said date Wilhelm's agents were negotiating an exchange of a quarter section of land in Sherman county, belonging to Wilhelm, for a stock of merchandise in Omaha, Nebraska; that on said date Wilhelm's agents had effected the exchange of Wilhelm's land for a stock of merchandise; that Wilhelm had made an engagement to meet his agents at their office in Omaha upon receipt of a message from them that they had perfected the exchange of said land for said merchandise; that the telegraph company never delivered said message; that by reason thereof Wilhelm arrived in Omaha too late to consummate the exchange of said land for said stock of goods; that said exchange was for that reason never perfected, and he thereby lost the profit he would have made in such exchange, to his damages in the sum of $ 1,500. Wilhelm had a verdict and judgment for $ 100, to reverse which the telegraph company has filed here a petition in error.
1. The telegraph company filed in the district court a motion as follows: "Comes now the defendant and asks the court that the plaintiff be required to make his petition herein more definite and certain, in this, to-wit: How and in what manner he could, or expected he could, make a profit of $ 1,500 in the trade or exchange mentioned in said petition." The overruling by the district court of this motion is the first assignment of error argued here. The petition was sufficiently definite and certain. It stated the facts. To have required Wilhelm to state in his petition in what manner he would have realized a profit on the exchange, had it been made, would have required him to state the evidence. If counsel for the telegraph company desired Wilhelm to state in his petition the value of the land and the value of the goods, they should have so framed their motion. Unless a motion can be allowed in the exact form presented to the court it should be denied. (McDuffie v. Bentley, 27 Neb. 380, 43 N.W. 123; Stuht v. Sweesy, 48 Neb. 767, 67 N.W. 748.) The refusal of the court to grant this motion was not error.
2. It is next assigned for error that the district court erred in giving instructions 3 and 4. The exception taken to the instructions at the trial was in the following language: "To the giving of the third and fourth of which instructions the defendant then and there duly excepted." The court did not err in giving both these instructions. The fourth, at least, is a correct statement of the law of the case, and since the assignment is that the court erred in giving both the instructions, and one of them is good, the assignment must be overruled.
3. The third assignment of error is that the court erred in refusing instructions 1, 4, and 5 asked by the defendant below. Exceptions taken at the trial to the instructions refused were as follows: "The defendant thereupon asked the court to instruct the jury as follows, which the court refused to do, and upon such refusal the defendant then and there excepted." Then follow instructions Nos. 1, 4, 5, and 6 asked by the telegraph company, and then the following: "To the refusal of the court to give to the jury the last above instructions the defendant then and there excepted." Since the court did not err in refusing to give all these instructions, the assignment is overruled.
4. The fourth assignment of error is that the verdict is not supported by sufficient evidence. In support of this contention it is said: "The evidence fails to show that the property which defendant was to receive was of greater value than the property he was to give." It was admitted on the trial that the land of Wilhelm, over and above incumbrances thereon, was of the value of $ 700, and the $ 300 cash which he was also to pay made the value of the land and money which he was to give for the goods $ 1,000. A witness testified in behalf of Wilhelm, as to the value of the stock of merchandise, as follows: "I think it was $ 2,400; am not right sure, but...
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