Harper v. Westeen Union Telegraph Co.

ELLISON, J. This action was instituted by plaintiff to recover damages which he alleges resulted to him from the failure of defendant to deliver to him a telegram which it had received at its Kansas City office. The judgment in the trial court was for the plaintiff. Plaintiff charges that he was authorized to' sell a large tract of land in Howell county, Missouri, and that he was to be paid for his services all he got for the land in excess of fl.50 per acre. He had a prospective purchaser at the price of $2. per acre who lived in the State of Iowa. That he communicated with this would-be purchaser by telegraph, when the purchaser answered by the same means, saying he would take the land. The latter message was not delivered to plaintiff until next day after being received at defendant’s office in Kansas City. In consequence of the delay, the land was sold to another party and plaintiff lost the commission he would have made. This is the second appeal of the case. When before us on the former appeal we disposed of the principal points involved in an opinion by Broaddus, P. J., by deciding them in plaintiff’s favor. The judgment was reversed and cause remanded on account of improper remarks by counsel in his address to the jury. By reference to the report of the case (92 Mo. App. 304) a full statement of the facts will be found. Every material point now involved in the case was considered and decided on the former appeal. A great portion of the argument of the defendant now addressed to us we do not consider applicable to the case made by plaintiff. This is not to be likened to a case against an owner of land whereby it was sought to charge the owner with a commission earned by an agent. Defend [272] ant, in defense, urges to us many things which it contends plaintiff did not do. In view of the nature of plaintiff’s complaint against defendant it was sufficient if he showed to the satisfaction of the jury that hut for the negligence of defendant in delaying delivery of the telegram he got from the prospective purchaser he lost a sale to that party and thereby was cut out of his commission. The cause of action is defendant’s negligence in delivery of the telegram. The damages which followed were a consequence of that negligence, viz: a loss of that which plaintiff could otherwise have gained. The truth is, that after the determination of the points involved in the former appeal, there was very little left in the case beyond mere questions of fact for the jury, Avhich were duly submitted by the instructions of the court. We are satisfied that no substantial error was committed and that the verdict was for the right party. The judgment is affirmed. All concur.