Western Union Telegraph Co. v. Hoyt

Hart, J. This is an appeal of the Western Union Telegraph Company from a judgment rendered against it in the Polk Circuit Court in favor of W. D. Hoyt. The decision on the former appeal is reported in 85 Ark. 473 (Hoyt v. Western Union Telegraph Company), to which reference is made for a statement of the case. Appellant assigns as error the refusal of the court to give the following instruction: “You are instructed that the measure of damages for a failure to deliver promptly the message herein complained of, if any negligence occurred for which defendant is responsible, is the difference between the price offered the plaintiff for the horse and the market value of fhe horse at fhe time of the offer to purchase was made, provided you believe from the evidence that the horse had a market value. In case your verdict should be for the plaintiff, it can only be for such amount as Scott Maxwell offered the plaintiff for the horse over and above its market value at the time, provided the offer was in excess of the market \ alue and provided you believe from fhe evidence that fhe horse had a market value.” The uncontradicted evidence shows that the filly was only two years old, was not fully developed and had no track record, and that on this account there was no market value for such a horse. Hence there was no evidence upon which to base the instruction. It was purely abstract, and there was no error in refusing it. Counsel for appellant also contends that the.court erred in refusing to give instruction No. 7 to the jury. It reads as follows : “You are instructed that when the telegram from the plaintiff to Maxwell was delivered to the defendant for transmission tb 1 plaintiff’s acceptance of Maxwell’s offer therein became binding on Maxwell, and that if Maxwell had not withdrawn his offer before such delivery of the message to the defendant then the plaintiff can hold Maxwell on his offer of purchase, and can not recover of this defendant for any negligence herein.” There was no error in refusing this instruction. Mr. Joyce says: “If, owing to the failure of a telegraph cpmpany to deliver a message sent in response to an offer to buy property at a certain figure as an acceptance thereof, there is a loss of the sale and a consequent loss of profits to the sender of the message, the company will be liable for the loss so sustained.” Joyce on Electrical Law, § 961. Finding no error in the record, the judgment is affirmed.