Beaupré v. Pacific & Atlantic Telegraph Co.

Young, J. The plaintiffs’ right to recover the damages allowed them by the court below, must be tried by the well established rule that ! £ the damages which a party to a contract ought to recover in respect of a breach of it by the other, are such as arise naturally from the breach itself, or such as may reasonably be supposed to have been co?itemplated by the parties, when making the contract, as the probable result of the breach.” Hadley v. Baxendale, 9 Exch. 341; Squire v. W. U. Tel. Co., 98 Mass. 232; True v. Internal. Tel. Co., 60 Maine, 9; Paine v. Sherwood, 19 Minn. 315, 324. The damages must, moreover, be certain, both in their nature, and in respect of the cause from which they proceed. They must not be the remote, but proximate, consequence of the breach of contract, and must not be speculative or contingent. Griffin v. Colver, 16 N. Y. 489, 495. The plaintiffs, in their complaint, treat Byan’s dispatch as an offer to sell such quantity of pork as they might order, at the price therein named, and their own message as an acceptance of such offer, and an agreement on their part to take two hundred barrels at that price. If such were the character of these dispatches, then the plaintiffs’ message, if seasonably delivered, would have effected a valid executory contract of sale, by which Byan would bo bound to furnish the pork contracted for, at the contract price ; the case would then be similar to Squire v. W. U. Tel. Co., and True v. Internat. Tel. Co., (supra,) in each of which the dispatch negligently delayed by the company was, and on its face purported to be, an acceptance of an offer to sell specific merchandise, and if seasonably delivered, would have completed a sale by which the property in such merchandise would have passed at once to the plaintiff. In those — 159 — cases, it was held, consistently with the rules above stated, that the measure of damages should be the difference between the price the plaintiff agreed to pay by the delayed message, and the sum which the plaintiff, using due diligence, would have been compelled to pay, at the same place, in order to purchase the same quantity of similar goods. But neither Ryan’s dispatch nor the plaintiffs’ message will bear the construction put upon it in the complaint. The plaintiffs had written to Ryan, enquiring if he had any more pork of certain lands, and requesting him to “telegraph price on receipt of this.” Ryan accordingly telegraphed as follows: “Letter received. No light mess here. Extra mess twenty-eight seventy-five (28.75.)” Upon receipt of this dispatch, the plaintiffs sent this message, which the defendant neglected to deliver indue season: “Dispatch received. Will take two hundred extra mess, price named.” Ryan’s dispatch did not purport to be an offer to sell any quantity of pork whatever, nor was the plaintiffs’ message an acceptance of any offer. The seasonable delivery of the plaintiffs’ message to Ryan would not have effected any contract binding him to deliver to the plaintiffs two hundred barrels, at the price named. Ryan’s dispatch was rather, (as seems to be admitted by the plaintiffs in their printed argument,) a quotation of the market price of pork, or per7 haps, a statement of the price at which he held his own pork; and the plaintiffs’ message was an offer to take two hundred barrels at the price named — a mere order for goods, which Ryan might accept or reject at his pleasure, and until Ms acceptance no contract would exist between the parties. As the plaintiffs’ message, seasonably delivered, would not of itself have effected any contract between themselves and Ryan, or secured to the former the pork needed by them at the price named, the plaintiffs’ failure to make a contract with Ryan, and to obtain the pork, was not the direct and natural result of the delay of their message. It was therefore necessary for the plaintiffs, in order to connect their failure to obtain the pork ordered at $28.75 with — 160 — the defendant’s negligence in transmitting their message, to-aver and prove that they would have obtained the pork at that price, had their message been duly delivered. The complaint accordingly alleges that, by the defendant’s negligence, “the plaintiffs were prevented from making, and did not and could not make, said contract with Ryan, and did not obtain said pork; that both said plaintiffs and said Ryan were willing and able to make and perform said contract, and would have done so, but for the aforesaid negligence and acts of the defendant.” The facts alleged in the passage quoted are none of them expressly found by the referee, whose report, in addition to the special findings of fact, contains the following statement, clearly negativing-these allegations of the complaint: “ As to all other allegations of fact contained in the pleadings in said action, I find the same, (except as heretofore stated in this report,) not proven.” This finding alone would be fatal to the plaintiffs’ claim ; for unless, upon the seasonable delivery of their message, they would have obtained, at $28.75, the pork which they were obliged afterwards to buy at $30 per barrel, is is difficult to see how they have sustained any loss whatever from the delay of the message. And certainly, any loss they may have suffered from the rise in pork ivas in no sense a consequence of the defendant’s negligence. Since the performance of its contract by the defendant would not have enabled them to secure their pork at any less price than they afterwards paid for it, the defendant’s breach of contract left them in no worse position than they would have occupied, had the contract been fully performed. There is nothing in the other findings of the referee from which it can fairly be inferred- that the seasonable delivery of the message would have enabled the plaintiffs to obtain the pork required by them at any less price than $30 per barrel. But even if we could presume from the referee’s findings that the plaintiffs would have obtained the pork at $28.75, had their message not been delayed, and that, in consequence of the delay, they have suffered the damage claimed — 161 — by them, there Avould still be some difficulty in holding the defendant liable for those damages. It is alleged in the complaint “ that Avhen the plaintiffs delivered their message to the defendant, they informed the defendant of its purport, and of the object aforesaid proposed to be secured by them by its transmittal;’ ’ but on this point the referee has merely found that the ‘1 defendant Avas informed of the contents and purport of said message.” Taken in connection with the statement in the report negativing the allegations not specifically found to be true, this is equivalent to a finding that the defendant had only such information of the nature and object of the message as Avas afforded by the message itself. The message purports to relate to some business transaction, the nature of which is not disclosed. It gives no intimation of the magnitude or importance of the business involved, or of the amount of damage that might result from a delay in transmitting it. The company might have known, from the tenor of the message, that it related to a purchase of goods, and Avas presumably of some value ; but the message itself, “Avill take 200 extra mess, price named,” would hardly have informed the defendant of the nature, quantity, price or value of the goods Avhich the plaintiffs offered to take. The damage the plaintiffs might suffer from a rise in the market price of pork, if this message Avere not seasonably delivered, could hardly have entered into the contemplation of the defendant, at the time it received and undertook to transmit this message, as a probable consequence of the breach of its contract. Stevenson v. Montreal Tel. Co., 16 Upper Canada Q. B. 530, Allen’s Telegraph Cases, 71; Kinghorne v. Montreal Tel. Co., 18 Upper Canada Q. B. 60, Allen’s Tel. Cases 98; U. S. Tel. Co. v. Gildersleve, 29 Md. 232 ; Baldwin v. U. S. Tel. Co., 45 N. Y. 744. Whether in the present case, the information conveyed to the company by the message Avas sufficient to render it liable for any consequential damages the plaintiffs might have sustained from its delay, is a question we are not required to determine; but considering the magnitude of the dam — 162 — ages which, may result from mistake or delay in transmitting important messages, damages often out of all proportion to the price paid for transmission, it is simple justice to the company that it should not be held liable for 'such consequential damages, unless the character and object of the message appear upon its face, or the nature of the risk assumed by the company is made known to it by the sender. The position taken by the plaintiffs’ counsel that Ryan was the plaintiffs’ broker, and that their message was an order to him to buy pork on their account, is inconsistent with the findings of the referee. The cases arising upon the delay of messages sent by principals to their agents, attorneys, and brokers, ( U. S. Tel. Co. v. Wenger, 55 Penn. St. 262 ; Parks v. Alta Cal. Tel. Co., 13 Cal. 422 ; Bryant v. Am. Tel. Co., 1 Daly, 575,) are therefore not in point; and it is unnecessary to consider whether, in all of these cases, the facts, as stated in the report, warranted the conclusion reached by the court. But while the plaintiffs are not entitled to consequential damages, the referee was clearly right in allowing them to recover the price of the message. The message was delivered to the defendant on July 15, at 6 o’clock p. m., with the request to forward it immediately. So far as appears from the referee’s report, the defendant might have sent it forward at any time before the storm which arose at half-past seven; but no attempt was made to send it until the next morning, and the defendant did not transmit and deliver it until the 19th, and did not inform the plaintiffs of the delay. Upon these facts, the referee was'justified in holding, as matter of law, that the defendant was negligent; (Derosia v. Winona & St. Peter R. Co., 18 Minn. 133 ; Pinney v. First Div. St. P. & P. R. Co., 19 Minn. 251;) and the direct and natural result to the plaintiffs from this negligence was the loss of the money paid by them for the transmission of the message, and this sum they are entitled to recover. Sedgwick on Damages, (6th Ed.,) 444, 446; Baldwin v. U. S. Tel. Co., 45 N. Y. 744. — 163 — The judgment of the court should be modified so as to ■conform to the report of the referee.