Bentley v. Western Union Telegraph Co.

Fullerton, J. The plaintiff, in October, 1913, shipped from Milton, Oregon, to El Centro, California, a carload of apples, consigned to the Imperial Valley Mercantile Company. A draft was drawn on the latter for the price of the apples at $2 per box, and sent with bill of lading attached through the Milton bank to the First National Bank of El Centro for collection. The mercantile company refused to accept the apples at the price named, but agreed to accept such as graded extra fancy at $1.75 per box, and the balance at $1.25 per box, and telegraphed that offer to plaintiff. In answer, the plaintiff through his agent, the Milton Bank, filed a telegram with defendant directing the bank in El Centro to accept $1.80 per box for the carload. By mistake of defendant the price was made to read $1.08 per box. The El Centro bank delivered the bill of lading to the mercantile company and accepted payment for the apples at the rate of $1.08, instead of the $1.80 demanded by the seller. The error was discovered by the bank within a few hours after it had collected for the apples at the rate of $1.08 per box, and the bank, in making its remittances to plaintiff, gave him a statement of the error. The defendant endeavored to get the mercantile company to pay the difference between $1.08 and $1.80 as the price per box, and the latter agreed to settle on a basis of $1.50 per box. The plaintiff, rather than receive that price, elected to accept the payment of $1.08 per box and bring his action against the defendant for the difference. The case was tried to a jury, which returned a verdict against defendant of $533.05, the full difference, with interest, between the price quoted in the message offered the defendant and the price named in the message as transmitted by it. The defendant appeals, assigning a number of errors whose discussion is grouped under two heads: (1) The error in the telegram was not the proximate cause of the loss, since the addressee must have known that an error had been committed, and no sale was effected by the erroneous [433] telegram; (2) the loss, in any event, could not exceed the difference between $1.50 per box and $1.80 per box. It appears from the evidence that both the Oregon and California banks were the agents of respondent in the sale of the apples, but that the California bank, when it received the telegram to sell at $1.08 per box, was in ignorance of the fact that, the day before, the mercantile company had tendered its principal an offer largely in excess of that price. The bank accordingly at once closed the sale, delivering the apples and accepting payment at the erroneous figures named in the telegram. The mercantile company was doubtless aware that it was getting the apples at a lower price through some error, since they were originally priced to it at $2 per box, and it had made a counter offer of $1.75 and $1.25 on the two grades in the shipment, the larger portion of the boxes ranking as the highest grade. The market price of the apples at El Centro was in evidence as being $1.80 per box for extra fancy Oregon apples. Respondent testified that the whole shipment was of this grade. Confirmation of the fact that the purchaser was aware of the mistake in the price quoted by the seller’s agent is shown by the fact that he was afterwards willing to pay an additional 42 cents per box, bringing the price up to $1.50 per box for the entire carload. It is the contention of appellant that, under this state of facts, respondent had the right to disaffirm the sale on account of the mistake, but that, when he confirmed the sale, this was a new contract entered into by him subsequent to the telegram, one not dependent on the transmission of the telegram, and hence his loss was not the proximate result of the appellant’s error in transmission. We cannot agree with this deduction of counsel. The apples lay in El Centro awaiting the result of the dickering of the parties as to price. When the seller’s agent received a telegram instructing sale at a certain price, it at once closed with the purchaser at that price. This contract was entered into at a mistaken [434] consideration due to the negligence of appellant. It is true, the contract might have been disaffirmed by promptly bringing suit therefor, but the forum was distant and the subject-matter of a perishable nature, the whole controversy subject to the uncertainty of evidence and the vagary of a jury, and in the end respondent might not have been able to realize an amount equal to that accepted from the purchaser. The natural consequence of the mistake in the telegram, under which delivery was made in ignorance thereof, was the loss of 72 cents per box to respondent. The acceptance of the mistaken price was due wholly to the erroneous telegram, and was the direct result of that error. The contract was made, not by the respondent, but by his agent in reliance on the erroneous message, and sale was made by the agent before respondent was aware of the mistaken telegram. The telegram was the proximate cause of a contract prejudicial to respondent, and to say that the respondent’s affirmance of it with knowledge of the mistake constitutes a new contract is not sound. He was merely making the best of a bad contract resulting from the mistaken act of appellant, with a view to holding it responsible. Reed v. Western Union Tel. Co., 135 Mo. 661, 37 S. W. 904, 58 Am. St. 609, 34 L. R. A. 492; Pepper v. Western Union Tel. Co., 87 Tenn. 554, 11 S. W. 783, 10 Am. St. 699, 4 L. R. A. 660. For a somewhat similar case decided by our own court see Henry v. Western Union Tel. Co., 73 Wash. 260, 131 Pac. 812, 46 L. R. A. (N. S.) 412. We think., however, there is merit in appellant’s contention that it was the duty of respondent to minimize his damages, where such a course was readily available to him. The evidence shows that, after the telegram erroneously transmitted by appellant had been acted on to the prejudice of respondent, the purchaser, who had taken advantage of the error, offered- to increase his payment for the apples from $1.08 to $1.50 per box. This the respondent refused to accept, relying upon the liability of the telegraph company to [435] respond for the total discrepancy between the telegram as given and as sent. This offer of the purchaser was promptly made and could have been availed of by respondent prior to his action against the telegraph company. It is a well established rule that one who has a claim against another arising out of the tortious conduct of the latter has a duty to minimize his claim for damages so far as possible. This rule has frequently been applied in like cases to the one before us. Fererro v. Western Union Tel. Co., 9 App. D. C. 455, 35 L. R. A. 548. “It is the duty of plaintiff on learning of the negligence of the telegraph company to make reasonable efforts to render the resulting damage as light as possible, and he cannot recover damages which by such care and diligence he could have avoided.” 37 Cyc. 1757. citing Western Union Tel. Co. v. Jeanes, 88 Tex. 230, 31 S. W. 186; Western Union Tel. Co. v. Reid, 83 Ga. 401, 10 S. E. 919; Postal Tel. Cable Co. v. Schaefer, 110 Ky. 907, 62 S. W. 1119. We think that the loss occasioned respondent was the natural and proximate result of the negligence of appellant for which the latter should respond in damages. But we think that it was also the duty of respondent to minimize his damages by the acceptance of the offered increase in price that the evidence shows the purchaser was willing to pay. Among the errors assigned is that the attorney for respondent, at the opening of the trial, read an assignment by respondent to appellant of any claim which the former might have against the Imperial Valley Mercantile Company arising out of its purchase of the apples pursuant to the erroneous telegram. The respondent asked1 that the assignment be made a part of the record, but appellant objected that the offer was incompetent, irrelevant and immaterial, and asked the court to instruct the jury not to consider it. The court made no ruling. It is urged that the mere offer had' a tendency to prejudice the jury adversely against appellant. [436] While the offer was immaterial in the case and the court should have properly instructed the jury to disregard it, we think the error was practically harmless. The failure of either party to further press or. oppose it, and of the court to pay any attention to it, must have apprised the jury that it was meant as nothing more than a tentative offer which it was not incumbent on appellant to accept. The judgment will be reversed, with instructions to modify it as indicated in the opinion. Parker and Mount, JJ., concur.