Hartstein v. Western Union Telegraph Co.

Wiuslow, J. Tbe claim of the plaintiff is that by reason of the negligence of the defendant in failing to deliver the telegram from Blascoer, he was deprived of the opportunity of collecting his debt, and that he is entitled to recover the amount of his loss from the telegraph company. "We think the evidence fails to show with legal certainty that he would have collected or secured his debt had he received the telegram on the day it was sent. It appears from the testimony of Blascoer that his reason for sending the telegram was because he desired “ to have him come, and see if I couldn’t settle up with him some pressing demands that were pressing, and have assume them, and I would secure him for the whole.” There is nowhere in the case any evidence that Blascoer wopld have voluntarily given the plaintiff any security except in the event that the plaintiff would assume other claims, or that ,he would have consented to the plaintiff’s entering judgment on his judgment note and levying on the stock. Nor is there any testimony that the plaintiff could or would have come at once to Marshall had he received the telegram earlier, or that he could or would have assumed any other claims in order to secure his own, or that he would have at once entered judgment and issued execution. Marshall was not a county seat, and it would have taken considerable time for the plaintiff to enter judgment on his note after he had arrived at Marshall, and in the meantime what course Blascoer would have taken is entirely uncertain. He might have turned out his stock to other creditors, and thus defeated the plaintiff. We cannot determine what would have been the result had the plaintiff arrived at Marshall on the 5th of February instead of the 9th. He might have obtained security for his claim, or he might not, and the evidence gives us no means of determining with any degree of certainty whether he would or not. It is, at best, a mere guess or .conjecture, upon which no [534] verdict could be founded. Duncan v. W. U. Tel. Co. 87 Wis. 173. This view of tbe case renders unnecessary any discussion of other questions wbicb were raised and argued. By the Gov/rL— Judgment affirmed.