Leigh v. Western Union Telegraph Co.

CoNNOR, J. At the close of all the evidence, defendant renewed its motion for judgment as of nonsuit, first made at the close of plaintiff’s [704] evidence and tben overruled. C. S., 567. Defendant’s first assignment of error is based upon exceptions to tbe refusal of the court to allow this motion. Defendant also, in apt time, requested in writing, that the court charge the jury, “That upon all the evidence, the jury should answer the second issue £No.’ ” The court refused to give this instruction, and defendant, having excepted to such refusal, assigns the same as error. Defendant thus presents its contention that in no event, upon the evidence, can plaintiff recover in this action the loss sustained by him upon the sale of the cotton purchased for him by Hubbard Brothers & Company. There is no contention by defendant that it transmitted and delivered the telegram as written and filed by plaintiff at Hamlet, N. C. It is admitted that the telegram transmitted and delivered to Hubbard Brothers & Company, at New York, did not include the words, which made the telegram, as filed by plaintiff at Hamlet, a conditional order to the brokers to buy cotton. The words, “If Government report,” before the words “fifty-six or under” were omitted from the telegram delivered to Hubbard Brothers & Company. The failure to transmit and deliver the telegram, ineluding these words, was evidence of negligence, sufficient to he submitted to the jury, upon the first issue. “It is well settled that where a telegraph company receives a message for delivery and fails to deliver it with reasonable diligence, it becomes prima facie liable, and that the burden rests upon it of alleging and proving 'such facts as it relies upon to excuse its failure.” Hendricks v. Telegraph Co., 126 N. C., 309, cited and approved in Willis v. Telegraph Co., 188 N. C., 114; Strong v. Telegraph Co., 22 Anno. Cas., 1912A, 55. Plaintiff, however, cannot recover of defendant the loss sustained by him, upon the sale of the cotton, unless the failure of defendant to transmit and deliver his telegram, containing a conditional order to buy cotton, was the proximate cause of such loss. The delivery by defendant to Hubbard Brothers & Company, of a telegram, which was a limited order to buy cotton and which plaintiff had not filed with defendant, did not authorize the brokers to buy cotton for plaintiff at 22.50 and plaintiff was not bound by the contract made by Hubbard Brothers & Company. The two hundred bales of cotton for December delivery bought by Hubbard Brothers & Company at 22.50 was not plaintiff’s cotton until after full knowledge that defendant had failed to transmit and deliver his telegram, which was a conditional order to buy; he ratified the purchase by his brokers by authorizing them to sell the cotton for him. Starnes v. R. R., 170 N. C., 222. The loss sustained by him, upon the sale of the cotton, on Tuesday morning, was not the result of the failure of defendant to transmit and deliver the telegram, which included the words, “If Government report” before the words, “fifty-six or under,” [705] but was tbe result of plaintiff’s acceptance of tbe cotton purchased by bis brokers for bim, without previous authority from him. It became bis cotton upon bis ratification of tbe act of bis brokers, and as be would have been entitled to any profit, which a rise in tbe price of cotton might have brought bim, be must sustain tbe loss resulting from a sale when tbe price of cotton bad gone down. Plaintiff entered upon tbe transaction, not “for bis health,” but with full knowledge of tbe hazards incident to it. His loss was one of tbe casualties of tbe business. Tbe facts which tbe evidence in this ease tend to establish are almost identical with tbe facts in tbe case of Cotton Oil Co. v. Telegraph Co., 171 N. C., 705. In tbe latter case, plaintiff delivered to tbe telegraph company at Mount Gilead, N. C., a message for transmission to John Kearns, at Wagram, N. C., offering twenty dollars per ton for cotton seed to be purchased by tbe said Kearns; tbe message delivered to Kearns included tbe word “two” after tbe word “twenty,” making tbe offer “twenty-two dollars per ton” instead of “twenty.” Acting upon tbe telegram delivered to him, Keams bought four car loads of cotton seed, paying for same a price which be would not have paid bad tbe offer in tbe telegram delivered to bim been “twenty” instead of “twenty-two” dollars per ton. Plaintiff discovered tbe error made by tbe telegraph company tbe next day and countermanded tbe order to Kearns. Plaintiff paid Kearns for tbe cotton seed purchased by bim prior to tbe discovery of tbe error, and then brought suit against tbe telegraph company for tbe amount paid Kearns in excess of tbe amount which it would have paid at twenty dollars per ton, claiming this amount as its damage, resulting from tbe erroneous transmission of its telegram. This Court held, in tbe opinion written by tbe late Chief Justice Hoke, that tbe plaintiff could not recover of tbe telegraph company, as damages, tbe amount paid to Kearns in excess of tbe amount which it would have paid for tbe seed at twenty dollars per ton for tbe reason that plaintiff was not liable to Kearns for this amount, and that tbe payment to bim of said amount was voluntary and made after tbe discovery by plaintiff of tbe error in tbe telegram. Plaintiff was not liable to Kearns for seed purchased by bim under tbe telegram delivered to bim, containing an offer of twenty-two dollars per ton. Tbe seed so purchased were not plaintiff’s seed until plaintiff, with full knowledge of tbe facts accepted them, and thereby ratified tbe offer of twenty-two dollars as contained in tbe erroneous telegram. Tbe error in tbe telegram as transmitted was not tbe proximate cause of loss to plaintiff, as alleged. In bis opinion, Judge Hoke cites with approval tbe “learned and forcible opinion” of Judge Folkes, in Pepper v. Telegraph Co., 87 Tenn., 554. In that case, plaintiff, engaged in business as produce dealers at Memphis, Tenn., bad filed with tbe telegraph company a telegram to be [706] transmitted and delivered to a broker at Birmingham, Ala., offering to sell a car of ribs at $6.60; in the telegram delivered to the broker, the price stated was $6.30; the broker accepted the offer made in the telegram as received by him and plaintiff skipped tke ribs, drawing on tke broker for $1650, tke price of tke car at $6.60. Tke broker refused to pay tkis draft, insisting tkat tke contract price was $6.30, as stated in tke telegram delivered to kim and not $6.60 as stated in tke telegram filed by plaintiff. Plaintiff accepted for tke car of ribs $1575 and sued tke telegraph company for $75, alleging said sum as kis damages resulting from tke negligent alteration of tke telegram by tke telegraph company. It was held tkat he could not recover tkis sum of defendant company, for tke reason tkat no contract between plaintiff and tke broker had resulted from tke telegrams, exchanged between them, tke plaintiff having made an offer to sell at $6.60 and tke broker having accepted an offer at $6.30. Their minds had not met. “Tke minds of tke party who sends a message in certain words, and of .the party who receives tke message in entirely different words, have never met. Neither can, therefore, be bound, tke one to tke other, unless tke mere fact of employment of tke telegraph company, as tke instrument of communication, makes tke latter tke agent of tke sender.” After a learned discussion of tke principles and an exhaustive examination of tke authorities, relied upon to support contrary views of tke proposition, he concludes tkat a telegraph company is not tke agent of tke sender of a telegram. Judge Hoke, approving tkis conclusion, says: “There is muck contrariety of decision on tke question whether a telegraph company may be properly considered tke agent of tke sender so as to bind kim by a contract made in kis name or for kis benefit by reason of a message which has been erroneously transmitted. In tkis jurisdiction it is held tkat tke company, in suck case and to tkat extent, is not tke agent of tke sender, tkat tke latter is not bound by tke terms of tke erroneous message, and unless otherwise in default may not be held responsible for tke effects of it.” Pegram v. Telegraph Co., 100 N. C., 28. Tkis conclusion is reached upon tke principle tkat a telegraph company is a public service agency, and tkat neither tke sender nor tke sendee when in need or desirous of its service, has any choice in tke selection of tke means by which tke service may be procured. Tkis Court has adopted and followed tke English, rather than tke American, rule as to tke liability of a sender to thé sendee of an erroneous telegram. Judge Hoke says, in Cotton Oil Co. v. Telegraph Company, supra: “As now advised, we have no present disposition to question tke soundness of tke rule.” See Jones on Telegraph & Telephone Companies, 2 ed., 1916, secs. 471 and 473. Tkis author says that tke states recognizing in some form tke English rule are Georgia, Massachusetts, Michigan, New Hampshire, North Carolina, Vermont and Wyoming. [707] Upon tbe facts presented in the instant case, however, it is immaterial whether the English or the American rule be applied to determine whether or not plaintiff was liable to Hubbard Brothers & Company for the cotton purchased by them upon the erroneous telegram. Plaintiff, with full knowledge that the cotton had been purchased, without regard to the condition named in his telegram, upon receipt by Hubbard Brothers & Company of the telegram, from which the words making his order conditional had been omitted, and that they had interpreted the telegram as received by them as a limited order, accepted the cotton, and took his chances of profit or loss, upon the rise or fall of the market. Defendant company cannot be liable for the loss, because of its failure to deliver the telegram as plaintiff wrote it. In Shingleur v. Telegraph Company, 72 Miss., 1030, the facts were as follows: Plaintiff’s cotton buyers, in Jackson, Miss.; wired their brokers in Boston, directing them to sell 500 bales of cotton at eight and one-half cents per pound. In the telegram delivered to the brokers, the price was stated as eight and five-sixteenths, instead of eight and one-half. The brokers sold at the price named in the telegram as received by them and notified plaintiffs. Plaintiffs, with full knowledge of the error made in the transmission of the telegram, ratified the sale and sued the telegraph company for the difference between what they would have received had the cotton been sold at the price named in their telegram as filed, and the amount they actually received for the cotton sold at the price named in the telegram as delivered to their broker. It was held that plaintiffs could not recover. Judge Whitfield, writing the opinion for the Court, says: “Plaintiffs had incurred no legal liability; they had merely to refuse to comply with the terms of a contract they had never made, and remit their brokers to their adequate remedy against the company. Their payment was voluntary and gratuitous, and cannot, on any sound or just principle, create for them a cause of action where none existed prior to such voluntary payment.” See, also, Harper v. Tel. Co., (S. C.), 130 S. E., 119. We therefore conclude, upon the authority of Cotton Oil Company v. Telegraph Co., supra, that plaintiff cannot recover of defendant the amount lost by him, as the result of the decline in the price of cotton between his ratification of the purchase made for him by his brokers, and the sale made by them, acting under authority from him. Having-reached this conclusion, it becomes unnecessary to consider or pass upon the other assignments of error. The assignments of error, based upon the refusal of the Court to allow the motion for judgment as of nonsuit under C. S., 567, must be sustained. There is no evidence from which the jury could find that plaintiff was injured by the negligence of defendant, as alleged. The judgment must be Beversed.