84 N.Y.S. 54 | N.Y. App. Term. | 1903
Plaintiff, a traveling salesman for S. Cohen & Co., of this city, was at the Boody House in Toledo, Ohio, with his trunk of samples, when he received a telegram from his house ordering him home. This was some time on Saturday morning. He wrote out on one of the defendant’s blanks a telegram as follows: “S. Cohen & Co. 78 Walker St. New York City. Wire me twenty dollars immediately Altman.” The signature was not plain and distinct. It can be read as plainly “A. H. May” as “Altman.” It was delivered at the store of S. Cohen & Co., with reasonable dispatch, at about 2:30 p. m. of the same Saturday. When delivered it bore the signature “A. H. May.” It had been sent “collect,” and its acceptance was declined; addressee indorsing thereon, “Don’t know A. H. May.” Plaintiff, having ascertained from the company that the dispatch had not been accepted by his house, testified that, having told the company’s representative at Toledo the importance of getting word to his house so that he could get away from Toledo that afternoon, that representative told him that the message would be corrected immediately, and forwarded and delivered to plaintiff’s firm in New York with the corrected name. Not receiving an answer that afternoon, on Sunday he borrowed $20 from the proprietor of the hotel, and, leaving his trunk as security, returned to New York on Sunday afternoon. The corrected telegram was delivered on Monday morning. His trunk was sent by express to him at a cost of $4, but did not arrive for four days. He testified that his average earnings while on the road were from $40 to $50 per week. Among the conditions on the back of the blank on which the original message was sent, and which have uniformly been held to be a part of the contract (Kiley v. Western Union Tel. Co., 109 N. Y. 236,16 N. E. 76), were the following:
“To guard against mistakes or delays, the sender should order it repeated; that is, telegraphed back to the originating office for comparison. For this one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery of nonrepeated messages beyond the amount received for sending the same; nor in any case for errors in cipher or obscure messages.”
If the case rested upon this original message, this judgment could not stand, for it was promptly delivered to the proper addressee, and t-he only mistake was in the signature. And, with the original before the court, we must say that it is as easily read as sent as intended. It would therefore come under the clause of “obscure messages,” or, in any event, the negligence could not be held so gross as to destroy the provision limiting liability to the amount paid for the message. What the sender had' paid for had been done. The message he had written
Another independent ground for reversal is that the damages proved were altogether too remote and speculative.
Judgment reversed, and new trial ordered, with costs to appellant to abide event. All concur. .
