Dodd Grocery Co. v. Postal Telegraph-Cable Co.

Fish, J. 1. The petition is very loosely drawn, but it can be gathered from its allegations that plaintiff, through its agent, on April 20, 1898, delivered a message to the defendant at its Atlanta office, to be at once transmitted to William Henderson at New Orleans, Louisiana, accepting his offer to sell two hundred barrels of sugar at “a certain price.” That plaintiff paid defendant to send such message, but that defendant failed to transmit and deliver it within a reasonable time. That there existed a custom of trade in such transactions, known and recognised by Henderson and the plaintiff, that the sale of the sugar could not be finally closed until Henderson had received information that his offer to sell it at the price named had been accepted by plaintiff, and Henderson had in turn agreed to the same. That, had defendant transmitted and delivered the message within a reasonable time, plaintiff would have [688] bought the sugar from Henderson at the price he first offered it; hut that the price of sugar advanced between the time when the message should have been delivered and the time it was actually delivered, so that plaintiff was forced to pay the advanced price, and was thereby damaged in the difference between the two prices on the lot of sugar in the sum of $170.80. We think, therefore, that the petition sufficiently set out the contract between plaintiff and defendant, the breach of the same by defendant, and the damages thereby caused to the plaintiff,, as against the first and sixth grounds of the demurrer. 2. In Western Union Telegraph Company v. Fatman, 73 Ga. 285, this court held that a telegraph company is hable in damages for unreasonable delay in the delivery of a cipher dispatch, and that the recovery in such a case is not limited to nominal damages, although the company may have no knowledge, except such as the dispatch itself may convey, of the special circumstances making it important. See also Thompson’s Law of Electricity, § 372, and cases cited in note 1. It is not necessary, therefore, that the message should indicate what damages may result to the sender from delay in its delivery. 3. The petition alleges that the message was delivered to the telegraph company by Andrews, a merchandise broker, in pursuance of plaintiff’s instructions, and that in so doing he acted as the agent of the plaintiff. Under the facts alleged, Andrews was the agent of the plaintiff and of Henderson also. He was Henderson’s agent to offer for sale the sugar at a fixed price, and the plaintiff’s agent to inform Henderson of its acceptance of his offer. Thus acting as the agent of both parties to the sale, Andrews’ duties to his respective principals were not inconsistent. See 4 Am. & Eng. Ene. L. (2d ed.) 964 — 5. If Andrews in sending the telegram was acting as the plaintiff’s agent, then the plaintiff may sue in its own name for damages resulting to it from unreasonable delay in the transmission or delivery of the message, though the defendant company had no knowledge of such agency. As was held in Woodruff v. McGehee, 30 Ga. 158, “When an agent makes a contract for Ms principal but conceals the fact that he is an agent, contracting as if he were principal, the principal may at any time appear in Ms. true character, and claim all the benefits of the contract from the other contracting party, so far as he can do so without injury to that other by the [689] substitution of himself for his agent.” See also Spain v. Beach, 52 Ga. 494; Watertown Steam Engine Co. v. Palmer, 84 Ga. 368; The governing principle is that an undisclosed principal, as the “ ultimate party in interest, is entitled, against third persons, to all advantages and benefits of such acts and contracts of his agent, and consequently that he may sue in his own name on such contracts.” Story, Ag. §418; Thompson, Law of Elec. §432, and cases cited in note 2; 1 Am. & Eng. Ene. L. (2d ed.) 1168 (b). Judgment reversed. All the Justices concurring.