Western Union Tel. Co. v. Coggin

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. This case was brought and tried before the case of Primrose v. Telegraph Co., 154 U. S. 1, 14 Sup. Ct. 1098, was decided. Since the decision in that case it has been the settled law in the federal courts [139] —First, that the conditions contained in the stipulation quoted, subject to which the unrepeated message oí the plaintiffs was sent, ai<e reasonable and valid; second, that, under these stipulations, the telegraph company is not liable for mistakes in the transmission or delivery, or tor the nondelivery, of an unrepeated message beyond the sum received for sending the same; and, third, that where an unrepeated message is in cipher or obscure, and does not on its face inform the telegraph company of the importance or extent of she business transaction to which it relates, and the company is not otherwise advised thereof, the measure of damages for mistakes in its transmission or delivery or. for its nondelivery is the sum paid for sending it.- . The decision of the supreme court in the case of Primrose v. Telegraph Co. silences further contention on these questions in the federal courts. The judgment below cannot he supported for two reasons: (1) It does not appear from the evidencie that, if Farris had re^ reived the message, he would have understood it, or taken any action on account of it, or that anything that was not done would have been done if the message had been received. Ooggin testifies to his object in sending the message; hut neither he nor Farris nor any other witness testifies that, if Farris had received the message as sent, he would have known what it meant, or that he would leave been prompted lo lake any action on account of it. It is not shown or claimed That it was a cipher message to which Farris had a key, or that there was any previous agreement or understanding between Ooggin and Farris as to what meaning should bee attached to a message couched in the terms of this one. On its lace it dot's not have the remotest relation to the purchase of the horses. The date mentioned varies nearly a month from the date on which the purchase of the horses was to be concluded. There is no hint as to the place of meeting, or about money, or the completion of any contract for the purchase of horses, or indeed of anything else. There is no evidence that, if Earns had received the message, he would have known what it meant, and attended at the proper time and place, and paid for the horses, or that he liad or could have procured the money to pay for them, or that he would have paid for them if he had had (he money and had been fully advised of all the facts. In a word, the message is so blindly written as to be absolutely meaningless to any one not having a key to the thoughts of the sender. Under ihe evidence, the message conveyed no more information to Farris or to the defendant (han if it had been in a cipher known to Ooggin alone, or in an unknown tongue. It is clear from the evidence that Ooggin himself blundered in writing it, and that he failed to use language to express what he intended and what he thought he had written at the time his complaint vas drawn. (2) There is nothing in the message to advise the defendant what it was about:, nor what, nor where any damage would result from its nondelivery; and particularly there is nothing from which it can properly and reasonably be said the alleged damages grow [140] ing out of tlie failure to complete tbe purchase of tlie horses was in the contemplation of both parties at the time the. message was sent. But it is said Coggin told the operator that the message related to “a business matter.” The evidence, however, does not show that Farris would have understood it related to a business matter, and particularly not to the purchase of the horses; and the mere statement made to the defendant at the time of sending the message that it related to a business matter conveyed no information to the defendant as to the nature of the business. It amounted to no more than to say, “This is a business, and not a social, message.” The nature of the business, was not disclosed. Whether it was of much or little moment, and whether it related to business of the past, present, or future, or to business which, if not transacted at a particular time or place, would be attended with pecuniary loss or damage, was not stated; nor was anything said from which such results can be said to have been within the contemplation of the parties. Certainly, it did not give the defendant the faintest idea of the transaction about the horses, and damages on account of that transaction cannot therefore be said to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. In Primrose v. Telegraph Co. the court say: “In Hadley v. Baxendale (decided in 1854) 9 Exch. 345,—ever since considered a leading case on both sides of tlie Atlantic, and approved and followed by this court in Telegraph Co. v. Hall [8 Sup. Ct. 577], above cited, and in Howard v. Manufacturing Co., 139 U. S. 199, 206, 207, 11 Sup. Ct. 500,—Baron Alderson laid down, as tlie principles by-which the jury ought to be guided in estimating the damages arising out of any breach of contract, the following: ‘Where two parties have made a contract which one of them has broken, tlie damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally (i. e. according to the usual course of things) from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the broach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract.’ 9 Exch. 354, 355.” The rule is stated in slightly different language by the court of appeals of New York in the case of Baldwin v. Telegraph Co., 45 N. Y. 744. The court say: “Whenever special or extraordinary damages, such as would not naturally or ordinarily follow a breach, have been awarded for the nonperformance of contracts, whether for the sale or carriage of goods, or for the delivery of messages by telegraph, it has been for the reason that the contracts have been made with reference to peculiar circumstances known to both, and the particular loss has been in the contemplation of both, at the time of making the contract, as a contingency that might follow the nonperformance.” [141] This definition of tbe rale is quoted approvingly by tbe supreme court in Primrose v. Telegraph Co.; and it is clear that, under the rule established in that case, the damages claimed by the plaintiffs in this case are too remote. The judgment of the United States court in the Indian Territory is reversed, and the cause remanded, with instructions to grant a new trial.