November 7, 1910. The opinion of the Court was delivered by This is an action to recover damages alleged to have resulted from the erroneous transmission of a telegram. M.C. Heath, one of the plaintiffs in this action filed with the defendant company at its office on the floor of the New York Cotton Exchange, on January 9, 1907, a telegram addressed to the plaintiff firm, reading: "Wired Vick Buy five May for your account. Buy any spots that look reasonable." The telegram as delivered in Columbia, S.C. read: "Wire Vick buy five May for your account. Buy any spots that look reasonable." On receipt of this message the plaintiff firm wired Heyward, Vick Clark, of New Orleans, to buy for it five hundred bales of cotton for May delivery. Upon discovering the mistake in the telegram complained of, plaintiffs telegraphed Heyward, Vick Clark at New Orleans, the following morning, to sell the five hundred bales which had just been purchased by reason of the receipt of said erroneous message. The cotton bought by plaintiffs, on receipt of said erroneous telegram, was resold the next day at a loss of $325, difference in the market price, and $75, commissions paid for brokerage, making a total loss of $400.
The exceptions on which this appeal is based are numerous. It appearing that the first exception has been abandoned, we shall proceed with the consideration of the others. *Page 234
Second exception. The plaintiffs by reason of the erroneous message purchased five hundred bales of cotton which would not have been purchased except for said message.
It was the duty of the plaintiffs to dispose of the cotton as a reasonable, prudent person would under like circumstances, in order that they might minimize the damage done them by reason of defendant's mistake. If plaintiffs had held the cotton for a speculation they would have done so at their own peril, for had they done so, and cotton had gone down in price, they could have been held to be the authors of their own misfortune.
Third exception. The telegram shows on its face thatsomething had been purchased, and in its changed form, it was an instruction to purchase that something, which certainly was notice to the defendant that if the word "wired" were changed to "wire," the plaintiffs would, in all probability, be possessed of two somethings instead of the one already purchased. It also shows on its face that that something had been purchased, as the original message read, or would be purchased as the erroneous message read, by a third party, and the presumption would be that such party was not making the purchase gratuitously.
Fourth exception. We think, as counsel for respondents say in their argument, that if this third request to charge needed qualification, the defendant's fourth request to charge, which was given, qualified it. The defendant's fourth request to charge is as follows: "If the jury shall find that the defendant has been guilty of negligence in causing the mistake in the transmission of the telegram, nevertheless the plaintiff is under a duty to use reasonable efforts to minimize his damages, and cannot recover any damages that might have been avoided by the use of reasonable care and diligence, and by the exercise of proper precautions." *Page 235
Fifth exception. The uncontradicted evidence shows that the telegram as filed with the defendant company for transmission read "Wired," whereas the message as delivered read "Wire." The former indicated information that something had been done; the latter was a command or request to do that something. The whole appearance of the message was changed in transmission — a totally different meaning conveyed. The message was filed with the company for transmission in a whole condition, in the exact form it was intended to be sent by the plaintiffs, it was delivered in a defective and altered form. This unquestionably made out a prima facie case and it became a question of fact for the jury to say if it had been rebutted.
Sixth to fourteenth exceptions (inclusive). These exceptions impute error to the trial Judge in leaving the question of general and special damage to be determined by the jury, and in admitting evidence tending to show special damage. It seems to us that a telegram filed with the defendant company, at its office on the New York Cotton Exchange, written in the language of the cotton trade, using terms with which an office of the company situated at such a place was familiar or should have been familiar, was intelligible to defendant's agent at such an office and that the damage complained of was the reasonable, fair and natural result of the incorrect message as sent. Therefore, if the trial Judge erred in submitting the question of general or special damages to the jury or in admitting evidence tending to show special damages, it was error in favor of the defendant company, giving it two chances to rebut plaintiff's case, whereas it should have had but one.
Fifteenth exception. The trial judge called the attention of the jury to the allegation in the complaint to the effect that the cotton was bought and sold for actual delivery, etc. *Page 236
Then, in his charge, he told the jury that plaintiffs must prove the allegations of the complaint by the greater weight of the evidence. This seems to us sufficient where such facts were alleged and proven and not seriously controverted.
Sixteenth, seventeenth and eighteenth exceptions. These exceptions impute error to the Circuit Judge in not holding that the law of the State of New York in which the contract referred to in the pleadings was executed and partly to be performed, must be enforced in this jurisdiction. The question was squarely presented by the pleadings in this case, the answer of defendant pleading that the contract was made in New York, was partly to be performed there, and setting out that the New York law upheld such contracts. While it is true that the action against telegraph companies for non-delivery, delayed delivery or delivery of an erroneous message is an action ex delicto, and that a cause of action always arises at the place where the message is to be delivered and sometimes elsewhere, yet it is equally true that in actions exdelicto arising out of contract, all questions affecting the nature, validity and interpretation of the contract are to be governed by the law of the State in which the contract was made and is to be performed in whole or in part. Such has been the rule in this State in all cases in which the question was presented by the pleadings.
In the recent case of Brown v. Tel Co., 85 S.C. 495, 67 S.E.R. 146, Mr. Associate Justice Gary delivering the opinion of the Court, after reviewing many authorities, says: "These authorities sustain the following propositions: (1) That the law of the State where the contract is made, and is to be performed, either in whole or in part, governs as to its nature, validity and interpretation. (2) That the failure of the company to convey the information, from the sender to the addressee, and not the wrongful act of an agent at any particular point prior to the delivery of *Page 237 the message to the addressee, constitutes the delict. A message is in transit, not only while it is being sent over the wires, but during the time it is in the hands of the messenger for delivery, after it reaches the place where the addressee resides; and there is no sound reason why the company should be liable when the agent in the State from which the message has been sent, or an agent along the line, is guilty of negligence, and yet not be liable for an act of negligence on the part of the messenger to whom the telegram is handed for delivery by the agent of the terminal office. (3) That it would be against public policy to require the plaintiff to prove at what point on the defendant's line the failure occurred, or to permit the defendant to show that the message was delayed at some specific point on its line, and thus make the plaintiff's right of recovery dependent upon the laws of that place. (4) There cannot be a segregation of liability on the undertaking of the company, for the reason that it is whole and single, and by this construction the parties know, when they enter into the contract, by what law its nature, validity and interpretation are to be governed. It is against public policy for the interpretation of a contract to be ambulatory and uncertain. The presiding Judge, therefore, erred when he instructed the jury to find a verdict in favor of the defendant."
In the case of Brown v. Tel. Co., supra, a message was sent from South Carolina to Washington, D.C., and it was contended that as the law of the District of Columbia did not permit a recovery for mental anguish disconnected with bodily injury, there could be no recovery, but it was held that as the contract was executed in South Carolina and was to be partly performed here, the law of South Carolina must be applied. In speaking of the same principle inGilliland and Gaffney v. Southern Ry. Co., 85 S.C. 26, 67 S.E.R. 22, Mr. Associate Justice Woods says: "The contract of shipment was made in Georgia and required part performance in that State and part in South Carolina. The *Page 238 rule which prevails in most jurisdictions, including this State, is that under such conditions any question as to the nature, validity and interpretation of that portion of the contract to be performed partly in Georgia and partly in South Carolina, namely, the portion that related to safe transportation from the point of delivery to the point of destination, would be determinable under the laws of Georgia unless there was evidence of the intention of the parties that a different law should be applied. Frasier v.C. W.C. Ry., 73 S.C. 140, 52 S.E. 964; Wharton on Conflict of Laws, 1062-1064."
In Walker v. Tel. Co., 75 S.C. 512, 56 S.E. 38, where a telegram was sent from South Carolina to Louisiana, the Court held that the cause of action arose in South Carolina and was governed by her laws. Chief Justice Pope delivering the opinion, at page 526, says: "Our own State has also held in Frasier v. R.R. Co., 73 S.C. 140, 52 S.E. 964; "That the law of a State where the contract is made and is to be performed in whole or in part, governs as to its nature, validity and interpretation.'" The cases of Balderson v. Tel. Co., 79 S.C. 160, 60 S.E. 435, and Harrison v. Tel. Co., 71 S.C. 386, 51 S.E. 119, seem to conflict with the above views, but in neither of those cases was the foreign law pleaded and the question here at issue was not squarely presented.
We think there was error in refusing to apply the law of New York and that there should be a new trial.
Let the exceptions be set out in the report of the case.
It is the judgment of this Court that the judgment of the Circuit Court be reversed.
JUDGES S.W.G. SHIPP and J.W. DeVORE sat in thiscase, MR. CHIEF JUSTICE JONES being disqualified.