Postal Telegraph-Cable Co. v. Willis

Mayes, J., delivered the opinion of the court. Floyd Willis was engaged in buying and selling cotton in the city of Jackson, Miss. On the 5th day of December, 1906, he sent a telegram to Knight, Yancey & Co., of Mobile, Ala., sub [550] mitting to them an offer to sell certain cotton which he then owned. The message was duly transmitted by the telegraph-company to Mobile and duly delivered. On receipt of tbe telegram Knight, Yancey & Co. wired Willis, accepting the offer. This message of acceptance by them was duly delivered to the telegraph company at Mobile, and by it sent to Willis, at Jackson, and received at tbe Jackson office at 1:05 p. m. At 2 o’clock of tbe same day this message of acceptance, had not been delivered to Willis although his office was within a short distance of the telegraph office. About 2 o’clock, and while this message lay undelivered in the Jackson office, Morrow, agent and manager of the firm of Knight, Yancey & Co., of Mobile, called Willis over the phone, and according to Mr. Willis’ own statement asked him (Willis) if he had received the acceptance of his offer; that is, the acceptance he sent by telegraph. Willis replied to him over the phone that he had not. Whereupon Morrow said he was very glad of it, and would then withdraw his acceptance, to which Willis assented; Willis, up to this time, had not received the telegram of acceptance from the telegraph office, and went immediately to the telegraph office, called for the telegram, and the same was delivered to him. The same cotton was subsequently sold about 10 o’clock at night to the same parties, at a loss of some $218 to Willis, and the object of this suit is to hold the, telegraph company liable for the loss thus sustained by Willis. There was a verdict in the court below in favor of tbe plaintiff, from a judgment on which the telegraph company appeals. It is settled law and seems to be conceded ton botb sides, that under ordinary circumstances the acceptance of Willis’ offer was complete when the telegram of acceptance of the proposition made was delivered by Knight, Yancey & Co; to the telegraph company in Mobile, and that the agreement then and there became a binding contract according to the-express terms contained in the telegram from Willis. The main contention of apepllees is that, while this is ordinarily true, yet in this particular instance [551] the contract was not a binding contract, for the reason that, ao cording to the custom prevailing among men engaged in the cotton business, the acceptance of the offer did not become binding until the actual delivery of the telegram by the telegraph company into the hands of Willis. It is claimed on the part of appellee that this is a general custom or usage prevailing among those engaged in the cotton trade, recognized by and acted under by them, and for this reason there was no contract until actual delivery to Willis, and, because there was no contract, the loss to the plaintiff was occasioned directly by the negligence of the telegraph company in -failing to properly deliver the message. On the other hand, it is claimed by the telegraph company that there was a binding contract at the time when this telegram was delivered in Mobile, and that any action taken by Mr. Willis occasioning loss to him was caused by his own act in releasing Knight, Yancey & Co. from a valid contract; that they cannot be held responsible for it, because no loss occurred by reason of their negligence. According to Willis’ own testimony, he was advised of the fact that there had been a telegram of acceptance before the order was cancelled over the telephone. The contract made by the parties by virtue of these telegrams is clear, unambiguous, and valid, unless the so-called usage or custom can be invoked to relieve the parties from the legal effect of their acts. There is no such uncertainty about this contract as makes it necessary, because of indeterminate terms^ to resort to custom or usage in order to understand exactly what was meant; but the contract is express in its terms, unambiguous, and became binding on the parties when the telegram of acceptance was delivered to the telegraph company in Mobile. It would be in the highest degree impolitic, and be the cause of introducing interminable confusion into contracts, if, when the terms of a contract are express, clear, and valid under the law, its legal effect could be controlled by some local or trade custom. Our court has long since been committed to this wise doctrine. Shackleford v. N. O., J. & Great Northern Ry., 37 [552] Miss. 202. In the case of Hopper v. Sage, 112 N. Y. 530, 20 N. E. 350, 8 Am. St. Rep. 771, citing many authorities, the court says: “Usage and custom cannot be proved to contravene a rule of law, or to alter or contradict the express or implied-terms of a contract free from ambiguity, or to make the legal rights or liabilities of the parties to a contract other than they are by the terms thereof. When the terms of a contract are clear, unambiguous, and. valid, they must prevail, and no evidence of custom can be permitted to change them.” In the case of Shackleford v. New Orleans, Jackson & Great Northern Railroad Company, 37 Miss. 202, the court has said: “These usages, many judges are of the opinion, should be sparingly adopted by the courts as rules of law, as they are often founded on mere mistake, or on the want of enlarged and comprehensive views of the full bearings of principles. Their true office is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of the contracts, arising, not from express stipulations, but from mere implications and presumptions and acts of a doubtful and equivocal character, and to fix and explain the meaning of words and expressions of doubtful or various senses. On this principle the usage or liabit of trade, or conduct of an individual, which is known to the person who deals with him, may be given in evidence to prove what was the contract between them.” 2 Greenleaf’s Ev. § 251, and note 5. And the court further says that, where a custom or usage is resorted to, such customs must be certain, uniform, reasonable, and not contrary to law. To the same effect is 2 Page on Contracts, p. 928: “The true and appropriate office of a usage or custom is to interpret the otherwise indeterminate intention of parties, and to ascertain the nature and extent of their contracts, arising, not from express stipulations, but from mere implications, assumptions, and acts of a doubtful or equivocal character.” Where the contract is definite and certain, thé obligations of a party, by reason of the contract, became fixed by law by the [553] terms of the contract which they have entered into, and, where there is nothing uncertain left in the contract, usage or custom] has no place. There are many instances in which a contract may be explained and controlled by a custom prevailing among men engaged in a certain line of business, but this is not one of them. We think the court below erred in refusing to exclude all evidence in reference to the damages arising out of the failure of appellant to deliver the telegram. Por this reason, the case is reversed and remanded. Reversed.