Lathan v. Western Union Telegraph Co.

OPINION.

The opinion of the Court was delivered by

Mr. Justice Gary

1 (after stating the facts). The first question that will be considered, is that presented by the exceptions, in which the appellant contends that the right do recover damages was dependent upon the fact that the plaintiff would have accepted the offer mentioned in the telegram, and that such fact was conjectural and uncertain, and, therefore, could not be considered in determining the defendant’s liability for damages.

A reasonable interpretation of the telegram' is that it related to a contemplated contract of sale, in which the article of merchandise was to be shipped during the month of June at the time stated in a previous communication to the Lynch-burg Milling Company, to which the message was a reply, and that it was necessary for the addressee to act promptly. The message showed upon its face that a failure to deliver it might naturally and reasonably be expected to cause delay on the part of the plaintiff in purchasing the desired article, and as a probable result that he would be compelled when he thereafter went into the market to pay a higher price than that stated in the telegram.. There was testimony to the effect that the plaintiff received notice on or about the 3d of June of the defendant’s failure to deliver the message; that on the 3d of June he sent a telegraphic message to the Lynchburg Milling Company, offering $1.31 per sack for three carloads of meal, and on the same day the Lynchburg Milling Company, in response, sent the following telegram': “One thirty-five, lowest June shipment. Quick reply. Market strong;” that instead of sending a telegram, he wrote a letter to them accepting the offer, for one carload of meal, but as their offer had not been accepted with promptness, they declined to sell at $1.35; that on the llth of June he bought three carloads at $1.40, and a few days thereafter purchased more meal at $1.44; that he would have accepted the offer of $1.30 on the,30th dajr of May, and that the delay in buying was directly caused by the failure to deliver the message, in consequence of which he was compelled to buy at an advanced price.

Among the cases upon which the appellant relies to sustain the proposition that evidence as to' whether the plaintiff would have accepted the offer contained in the telegram; cannot be considered on the ground that it is. conj ectural and uncertain, is that of Beatty L. Co. v. Tel. Co., 44 S. E. R. (W. Va.), 309, in which the authorities are reviewed. The case was well considered and strongly supports the appellant’s contention. It is predicated upon the theory, that when there is- a failure to deliver a telegram containing an offer to sell, and the market advances, in price, the addressee cannot recover damages, unless it is made to' appear that he would have accepted the offer, and that the testimony of the addressee that he would have accepted the offer cannot be considered in determining the company’s liability, on the ground that it is conjectural and uncertain. The fallacy in the reasoning of the Court in that case, is in supposing that the telegraph company would not be liable, unless it was shown that the addressee would have accepted the offer. If the failure to deliver the telegram was. the direct and proximate cause of the delay on the part of the plaintiff, in postponing the purchase of meal, whereby he was compelled, when he went into the market, to pay the advanced price, he would be entitled to1 recover damages, although there was no' testimony establishing the fact that he would have accepted the offer. Such testimony, however, is admissible for the purpose of showing- the intent and motive of the plain-, tiff, in postponing his purchases', on the ground that it is explanatory of the delay.

2 The next question that will be considered is whether the presiding Judge erred in overruling the motion for nonsuit, on the ground that there was no testimony tending to show wantonness, wilfulness or recklessness, entitling the plaintiff to punitive damages. The entire name of the addressee was changed and the message was delivered to his competitor in business. This afforded at least some evidence of a reckless disregard of the plaintiff’s rights.

3 These views practically dispose of all the exceptions, except -those assigning error on the part of the presiding Judge, in permitting the plaintiff to introduce certain testimony, which the appellant contends was irrelevant. Such testimony must necessarily be left in great measure to1 the discretion of the presiding Judge, and his ruling will not be reversed, unless, tjhere was abuse of discretion, which the appellant has failed ho show in this case.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.