Manville v. The Western Union Telegraph Co.

MILLER, J. Appellant's counsel insist that the verdict is contrary to the evidence. They claim that there was no evidence before the jury of negligence on the part of defendant, unless it is inferred from the mere fact of the mistake in the dispatch and the delay in its delivery to the plaintiff, which, they contend, is insuf ficient.

The testimony shows that the message was received at Marshalltown Friday, the 13th of October, 1871; that the defendant kept a messenger boy to deliver messages; that the message in this case was not placed in the hands of the messenger by the operator until Monday, the 16th of that month; that the messenger found plaintiff and delivered the message to him on the same day it was handed to him by the operator, notwithstanding the mistake.

Now it may be conceded, as argued by appellant's counsel, that, if the message had been repeated, no mistake would have happened, and that under the special agreement printed on the message as sent by plaintiff's agents at Chicago, the defendants are not responsible for the mistake which did occur, and still the verdict be sustained by sufficient evidence. The question of negligence was one of fact for the determination of the jury, under all the circumstances disclosed by the evidence. They may have concluded that the retention of the message by the operator at Marshalltown, from Friday, the 13th, until Monday, the 16th, before placing it in the hands of his messenger for delivery, was, under all the circumstances, a want of ordinary and reasonable care; and we think that such conclusion would be reasonable in view of the evidence. retention of the message, by the receiving operator, for three days before placing it in the hands of his messenger for delivery, might very reasonably be found to be negligence, for which the defendant may be held liable.

The

While the printed regulation in respect to the repetition of messages, in order to avoid mistakes, is a reasonable one, and will exempt the defendant from liability for mistakes, occurring in the transmission of messages, which are occasioned by uncontrollable causes, such as atmospheric electricity, yet it will be liable, notwithstanding this regulation, for the want of ordinary and reasonable care in the transmission or delivery of messages sent over its lines. Sweatland v. Illinois and Mississippi Telegraph Co., 27 Iowa, 433; S. C., 1 Am. Rep. Notwithstanding this regulation or special agreement, it is still the duty of the defendant to employ skillful

Manville v. The Western Union Telegraph Co.

operators, use proper instruments, and, through its employees, to exercise ordinary and reasonable care in the transmission and delivery of messages. Ib. See also New York and Western Telegraph Co. v. Dryburg, 35 Penn. St. 298; Parks v. Alta California Telegraph Co., 13 Cal. 422.

This neglect in the operator to place the dispatch in his messenger's hands for delivery does not seem to have been the result of the mistake in the address. There is no reason, upon the evidence, to infer that he would have done so any sooner if there had been no mistake. We may infer that the plaintiff would have obtained the dispatch on the 13th, when he called in person at the telegraph office and inquired for it, if it had been correctly addressed. But that this might have been so, does not excuse the negligence of the operator in respect to the delivery of the message; for it may reasonably be inferred that, since the messenger found the plaintiff and gave him the message on the same day he received it, the 16th, if the operator had given the dispatch to the messenger on the 13th, plaintiff would have received it the same day.

It is next urged that the action is not maintainable because the damages sought to be recovered are for profits depending upon market fluctuations and not recoverable in law.

It is sometimes said that speculative profits are not allowed as an element of damages. Smith v. Condry, 1 How. 28; Blanchard v. Ely, 21 Wend. 342; Benson v. Malden and Mel. G. L. Co., 6 Allen, 149.

But it is very clear that future profits are sometimes allowed by the law. The rule as laid down in Griffin v. Colver, 16 N. Y. 489, which is a leading American authority on the subject, is that "the party injured by a breach of contract is entitled to recover all his damages, including gains prevented, as well as losses sustained, provided they are certain, and such as might naturally be expected to follow the breach. It is only uncertain and contingent profits, therefore, which the law excludes; not such as being the immediate and necessary result of the breach of the contract, which may be fairly supposed to have entered into the contemplation of the parties when they made it, and are capable of being definitely ascer tained by reference to the established market rates."

For a failure to deliver goods at a specified time and place, where the price is not to be paid until delivery, the measure of damages is the difference between the contract and the market price at the

Manville v. The Western Union Telegraph Co.

time and place of delivery. Where the price has been paid in advance of delivery the plaintiff may recover the highest market price between the day fixed for delivery and the time suit is brought, provided there is no unreasonable delay in bringing the suit. Cannon v. Folsom, 2 Iowa, 101, and cases there cited. See, also, Davenport v. Wells, 1 Iowa, 598, and same case in 3 id. 242. See, also, the following cases: Shepard v. Milwaukee Gas-light Co., 15 Wis. 318; Hinckley v. Beckwith, 13 id. 31; Story v. The N. Y. and Harlem R. R. Co., 6 N. Y. 85; Fox v. Harding, 7 Cush. (Mass.) 516; The Philadelphia, Wilmington and Baltimore R. R. Co. v. Howard, 13 How. 807; Thompson v. Jackson, 14 B. Monr. 114; Cook v. Commissioners of Hamilton County, McLean's C. C. R. 612; Hag v. Grouable, 34 Penn. St. 9.

case.

In these and like cases profits are recoverable, and recovered in all cases where the market value is greater than the contract price. The party failing to deliver the goods according to agreement has injured the other party; the measure of that injury, where the price has not been paid, is fixed by the law at the sum which the goods would have brought in market at the time and place of delivery, less the contract price. The law deems it certain that if the goods had been delivered to the purchaser he could have sold them for the market value. This value is capable of being certainly ascertained with regard to all commodities having a fixed market price. The same rule, based upon the same principle, is applicable to this The market value of hogs in Chicago on any day was capable of being certainly ascertained. If defendant had had his hogs in Chicago three days sooner he could have sold them at the then market price. He was prevented from shipping his hogs sooner by the negligence of the defendant's agent. The difference, therefore, between the market value of the hogs on the day plaintiff could have put them on the market if the defendant had been guilty of no negligence in the delivery of the dispatch, and the market price when plaintiff was afterward able to put his hogs into the market, is the direct consequences of the neglect of defendant. This, too, is the measure of damages which may fairly be supposed to have entered into the contemplation of the parties at the time the message was delivered to defendant's operator at Chicago. The message was: "Ship your hogs at once." The obvious reason of this is evident on its face. It clearly imports that to meet a good market the hogs must be shipped at once, and that by delay a good market

Garretson v. Selby.

will be lost. It is equivalent to saying, if you ship at once you will obtain gains on the purchase and sale of your hogs. If you delay, these gains will be lost by the market price declining. It is most obvious, therefore, that the parties contemplated this very thing, and that it was clearly understood that negligence in the transmission or delivery of the message to the plaintiff would prevent him from obtaining gains by a sale of his hogs in the market, as was intended. This was the object of the message and there could be no misunderstanding it. It was contemplated by the dispatch to enable the plaintiff to put his hogs into market and make gains thereby. The negligence of the defendant prevented him doing so. Plaintiff's loss by reason of this negligence is the direct, certain injury he has sustained, and which was within the contemplation of the parties.

Affirmed.

The defendant, H. W. Selby, ordered of the plaintiffs goods, which were shipped by the usual carrier, but by a clerical error they were directed to "W. H. Selby," instead of H. W. Selby. The defendant never received the goods. In an action for their price, held, that in the absence of proof that the loss of the goods was attributable to the error in direction, the defendant was liable.

A

CTION to recover the price of one barrel of sugar which plaintiff alleged that he had sold and delivered to defendant. The cause was tried by the court, who found the following conclusions of fact of law:

1. The plaintiff is a wholesale grocery merchant, residing and doing business in Muscatine, Iowa. The defendant is engaged in mercantile business in Sigourney, Iowa.

2. On the 5th day of June, 1871, one Stiles, who was the traveling salesman of plaintiff, called at defendant's business house in Sigourney, for the purpose of selling to defendant a bill of goods. The defendant had been in the business for several years previous

thereto, under the name of H. W. Selby, and had transacted more or less business with plaintiff.

3. But previous to the visit in question, and about March, 1869, the defendant had formed a partnership with one George Cissna, under the firm name of H. W. Selby & Co., and had ordered and received several bills of goods from plaintiff in the firm name of H. W. Selby & Co.

4. At the time of the visit of said Stiles, the old sign of H. W. Selby remained over the door, and said agent did not himself know of the change in the name of the house, or of the existence of said firm.

5. At said date plaintiff's said agent received an order from said Cissna, who was transacting the business of the store, for one barrel of sugar, $27.40. It was understood between them that said sugar should be shipped by rail from Muscatine to Washington, Iowa, which was then the nearest railroad point to Sigourney.

6. The order was forwarded to plaintiff's house, and plaintiff promptly delivered the sugar to the railroad company at Muscatine station, on the 8th day of June, 1871, and received the company's receipt therefor.

7. Said barrel of sugar was directed to W. H. Selby (not H. W. Selby), Sigourney, Iowa; was duly forwarded by said company to Washington, and was there delivered by the railroad company to one of the teamsters who was engaged in hauling goods between Washington and Sigourney, and who had before hauled goods for defendant.

8. The defendant never received the sugar, nor did the firm of H. W. Selby & Co., but the same is lost, and neither defendant nor his firm has ever had any knowledge thereof.

And as conclusions of law from the foregoing facts, I find, That while it is true that a delivery of goods to the railroad company, if properly addressed and in accordance with the directions of the buyer, is a delivery to the buyer, yet as these goods were not so delivered, but were misdirected, being directed neither to the defendant individually nor to his firm, and a loss occurring, the loss must fall upon the seller. Judgment is therefore rendered against plaintiff for costs, taxed at $-.

To which conclusions of law and rendition of judgment plaintiff at the time excepted.

The plaintiff appeals.