Fulkerson v. Western Union Telegraph Co.

Hast, J., (after stating the facts). In the case of Merrill v. Western Union Telegraph Company, 78 Me. 97, the facts were that the plaintiff’s agent completed a verbal contract that the plaintiff should labor for a manufacturer at $2.25 per day and sent a telegraph message to plaintiff, notifying him of that fact. The message was not delivered by the telegraph company in time for plaintiff to begin work, as stipulated, and he thereby lost his employment. The telegraph company denied liability beyond nominal damages. The court sustained the position of the-telegraph company, and said: “The contract was defeasible at the will of either party. How, then, can any substantial damage be measured? Had the engagement to employ the plaintiff been for a stipulated and definite period, not over one year, the plaintiff would have a right to demand damages that could be definitely measured and assessed. He would then have been entitled to enjoy the fruit of his labor during the time of his engagement; but under the terms of the contract in proof, he was liable to be dismissed from his employment as soon as he had entered upon it, and it can not be known what damages he has suffered in the premises. The plaintiff must prove his damages before they can be assessed. The case fails to show facts that warrant greater than nominal damages.” See also Mondorn v. Western Union Tel. Co., 23 S. E. (Ga.) 853; Larsen v. Postal Telegraph Cable Co., 130 N. W. (Iowa) 813; Walser v. Western Union Tel. Co., 19 S. E. (N. C.) 366; Kenyon v. Western Union Tel. Co., 35 Pac. (Cal.) 75. The offer to employ plaintiff by the International Stock Food Company, if accepted by him, must be taken as an employment at will, terminable by either party. Haynie v. Caldwell, 35 Ark. 156; Arkansas Lumber Co. v. Asman, 68 Ark. 526; St. Louis, I. M. & S. Ry. Co. v. Matthews, 64 Ark. 398; Harrod v. Wineman, 125 N. W. (Iowa) 812; Savannah, F. & W. Ry. Co. v. Willett, 31 Southern (Fla.) 246. Counsel for appellant have not cited us to any cases opposed to the rule announced above, and we have been unable to find any. Where the telegram contains an unconditional offer of employment for a definite length of time, and the testimony of the plaintiff shows that he was in a position to accept the employment, and would have done so, this furnishes a fair and just basis • for plaintiff ’s damages, and he is entitled to recover. The rule on the subject is laid down in 37 Cyc. 776, as follows: "Where the message is of such a character that its delivery would have resulted in a binding contract of employment, and in consequence of the negligence of the telegraph company no contract is made, plaintiff may recover his actual loss, namely, the amount which the other party would have been legally obliged to pay him under the contract, less what he actually made, or could, in the exercise of reasonable diligence, have made in similar employment during the corresponding time. * * * In the case of an employment from day to day, only nominal damages, or, at most, one day’s salary, can be recovered, while in the case of an employment from month to month, the limit of plaintiff’s recovery is one month’s salary.” To the same effect is Jones on Tel. & Tel., § 521. We are of the opinion that the court did not err in excluding the testimony offered by the plaintiff as to the amount of profits he could have made under the contract. The message, however, was intelligible, and the plaintiff was prevented from accepting the employment by the negligence of the defendant in failing to deliver the message. In the case of Western Union Tel. Co. v. Askew, 92 Ark. 133, the court held: "Where a message offered to a telegraph company for transmission discloses upon its face that it relates to a business transaction of importance and value to the sender, the company has notice of any direct or actual damages that may result from its negligence in the transmission of the message, and is liable therefor.” Therefore, he was entitled to nominal damages, and the court erred in directing a verdict for the defendant. Where a plaintiff is entitled to nominal damages only, the judgment will be reversed, but the cause will not be remanded. In such cases, judgment will be entered here for nominal damages and costs. Dilley v. Thomas, 106 Ark. 274, and cases cited. Therefore, the judgment of the lower court is reversed, and judgment will be entered here in favor of the plaintiff for nominal damas-es and all the-costs of this cause.