Western Union Telegraph Co. v. Patty Dry Goods Co.

SMItii, J., delivered the opinion of the court. This is an appeal from judgment in the court below awarding appellee damages, alleged to have been sustained ■ by it, by reason of the failure of ajopellant to deliver a telegram sent by appellee. Appellee was a corporation engaged in a mercantile business at Macon, Miss., and intended to move to the state of' Oklahoma and engage in a similar business there. On May 5, 1907, appellee received the following letter from Stinson & Mounts, a partnership engaged in the real estate business in Frederick, Okla.: “Mr. It. C. Patty, Macon, Miss. “May 5, 1907. “D'ear Sir: Tour letter, addressed to Mr. N. J. Kato> handed to us for attention. Mr. Nato requested us to advise you that he would be unable to put up1 the building that you would desire. We have a building now under construction, which will be completed within the next fifteen or twenty days, 27%x90 ft. It is the block just west of Mr. Nato’s property, which would be three doors from the corner, the First National Bank being the corner building. That we can rent you for $75 per month. This is well-located property, and, if you desire same, advise us by telegram upon receipt of this letter, and we will hold same until you can make a trip1 of investigation. Several parties are wanting this building, but we will wait until we hear from you before closing a qpntract. We enclose you herewith a diagram showing the location of this property relative to the property of Mr. It. J. Nato. We trust that we will hear from you immediately. We are, yours truly, “Stinson & Mounts.” [785] In reply to tbis letter appellee delivered to appellant’s agent at Macon, Miss., a telegram addressed to Stinson & Mounts, which telegram was never delivered to the said Stinson & Mounts. The telegram read as follows: “Macon, Miss., 5 — 9—07. Stinson & Mounts, Frederick, Oklahoma. We want building; hold same*; letter by mail. “R. C. Patty.” R. 0. Patty was a member of appellee corporation, and this telegram was signed by him for and at the request of said corporation. The letter referred to in the telegram, and which was duly mailed and received by Stinson & Mounts, was as follows: “Macon, Miss., May 9, 1907. “Stinson & Mounts, Frederick, Okla. “Dear Sirs: We beg to acknowledge receipt of your valued favor of the 5th inst., in which you offer us the refusal of your store building to be furnished about the 1st of June. We immediately telegraphed you we wanted the building and desired you to hold same for us. You failed to inclose diagram of location, but we think we remember pretty well the location. We suppose the $75 per month rental means a completed store, with modern shelving and counters, ready for occupancy, etc. We would like to suggest one thing, and that is the inside painting be all pure white. We shall expect the rent to begin August 1st., if all things shall be in readiness for us, and agreeable to you. Hoping to hear from you, and to know the deal is closed, yours truly. “Patty D. G-. Company.” When the letter was received, Stinson & Mounts had disposed of the building, and it became necessary for appellee to secure another building, thereby incurring certain alleged expense and damage. At the close of the evidence the court refused to grant appellant a peremptory instruction, but granted one for appellee. Had this telegram been delivered, no contract for [786] tbe building would thereby have been completed, and, for that matter, no such contract was completed by the letter which followed the telegram. The case, therefore, falls squarely within the principle announced in W. U. Tel. Co. v. Adams Mach. Co., 92 Miss. 849, 47 South. 412, and the peremptory instruction requested by appellant should have been given. Reversed and remanded.