Allen & Co. v. Monroe County Hay Exchange

William H. Cooic, J., delivered the opinion of the court. The Monroe County Hay Exchange sued Allen & Co. in ah action of attachment on open account for the proceeds of three cars of hay collected and retained by it. The defendant, Allen & Co., denied the indebtedness and filed a set off and counterclaim for damages accruing to it by reason of the failure and refusal of the plaintiff to ship other cars of hay alleged to have been purchased from plaintiff and resold, thereby making it necessary for the defendant to go into the market and buy hay at greatly increased prices. Upon the trial of the debt issue there was a verdict and judgment for plaintiff, and defendant appeals.' [507] . The Monroe County Hay Exchange is a corporation engaged in buying and selling hay, and appellant, Allen & Co., composed alone of C. A. Allen, was engaged in the brokerage business in the city of Birmingham,, Ala. During the year 1916 the Hay Exchange sold to or through Allen numerous carloads of hay, which were either consigned to him or shipped to buyers designated by him, and he was paid a commission for each car sold. This controversy grows out of certain contracts alleged to have been made by the telegraphic correspondence hereinafter set out: On the .morning of June 22, 1916, Allen & Company wired the Hay Exchange as follows: “Western Union Telegram. “6-22-16. “To Monroe County Hay Exchange, Prairie, Mississippi. Birmingham Grain offers seventeen dollars five cars choice alfalfa, shipment within ten days, wire answer. “Allen & Company.” This message was at once answered by the Hay Exchange as follows: “Prairie, Miss. 12-23 P. M. June 22, 1916. “Allen & Company, Birmingham, Ala. Will fill your order fon five cars hay. “Mo,nroe. County Hay Exchange — 12—53PM.” On the same day, after he had wired the order for five cars for the Birmingham Grain Company, appellant sent appellee the following telegram: “Birmingham, Ala. 6 — 22—16. “To Monroe County Hay Exchange, Prairie, Miss. Book us five cars choice alfalfa seventeen dollars delivered. Allen & .Company.” Upon receipt of this second telegram appellee wired the following answer: “Prairie, Miss. 3 — 10 PM. June 22,1916. “Allen & Company, Birmingham, Ala. Will ship five cars as per your wire today. “Monrob County Hay Exchange — i3—28PM.” * Again on July 5, 1916, Allen & Co. ordered five other cars of hay, sending the following telegram: [508] “Birmingham, Ala. 7 — 5'—16. “To Monroe County Hay Exchange, Prairie, Miss. Book us five cars choice alfalfa seventeen. What about three cars due. Wire answer. Allen & Company.-” And on the same day Allen & Co. received the following reply to this last telegram: “Prairie, Miss. 7 — 5—16. “To Allen & Company, Birmingham, Ala, Will ship balance due at once and book five more. Monroe County Hay Exchange.-” The appellee Hay Exchange failed and refused to ship the five cars ordered' by Allen & Co. on June 22'd and also refused to ship the five cars ordered July 5th. In all of these transactions the Hay Exchange was represented by E. L. Henley, secretary and treasurer of the corporation, and when introduced as a witness he testified that he was the only person authorized to act for the corporation in buying and selling hay. 1-Ie admitted the receipt of the telegrams of June 22d, and admitted sending the acceptances, but excused his failure to ship the hay on the ground that he understood both the telegrams of June 22d to refer to the five cars ordered for the Birmingham Grain Company.. As to the five cars ordered on'July 5th he testified that he was away from his office on that day, that no one Avas left at the office who had authority to accept an order, that the telegram of acceptance of that date Avas unauthorized, and ’that when he returned home about the 12th or 13th he found these telegrams on his files, and immediately repudiated this acceptance by letter addressed to Allen & Co. Appellant contends that the telegrams of June 22d completed a valid and binding contract with appellee to ship five cars of hay to the appellant, and the action of the court in submitting to the jury the question as to whether or not the contract was consummated by these telegrams is assigned as error. The first telegram sent on June 22d was an order for hay to be shipped to a designated party, and [509] the telegram of acceptance constituted a completed contract. The second telegram, received three hours later, was unambiguous and easily understood, and was an order for five cars of hay to be shipped to a different person or firm. There was nothing in its terms or language to mislead the agent of appellee, and if he was uncertain as To its meaning or purpose he could have easily protected his company by an inquiry, or by so wording his answer as to limit his acceptance to the one order from the Birmingham Grain Company. If by negligence or inattention he construed the telegram to mean something wholly at variance with its express terms, he should not be permitted to take advantage of his inattention to the damage of the other party who was. without fault. Coats & Sons v. Bacon & Co., 77 Miss 320, 27 So. 621; Thompson v. Ray, 46 Ala. 224; Fidelity & Casualty Co. of New York v. Teter, 136 Ind. 672, 36 N. E. 283; Grymes. Sanders, 93 U. S. 55, 23 L. Ed. 798; Cyc. vol. 9, pages 398-399. Under the facts in evidence here we think the telegram of June 22d, ordering five cars of hay to be shipped to appellant, and the acceptance thereof, consummated a binding contract, and that instruction No. 7, submitting to the jury the issue as to whether a contract was consummated by these telegrams, was error. There is a sharp conflict in the evidence about the supposed contract growing out of the telegrams of July 5th, and the repudiation thereof, but all these controverted facts were submitted to the jury under proper instructions. We find no error in any of the other rulings of the court, but for the error herein indicated the cause is reversed and remanded. Reversed and remanded.