89 Ala. 191 | Ala. | 1889
Lead Opinion
It having appeared during the course of the trial, that the legal title to the contract was in Renfro Bros., the brokers of H. L. Daughtery, by reason of having signed, in their own names, and delivered to defendant for transmission, the telegram set forth in the complaint, an amendment making it the suit of the surviving partners of Renfro Bros, for the use of Daughtery, in whose name it was originally commenced, was proper.—Harris v. Plant, 31 Ala. 639. The amendment, when allowed, related to the commencement of the suit, and no new matter or claim being introduced, the statute of limitations ran only to the filing of the original complaint. — Evans v. Richardson, 76 Ala. 329.
As in cases of other writings, proof of the loss of a telegram is a pre-requisite to the admission of secondary evidence of its contents.—Whilden v. Mer. & Plant. Bank, 64 Ala. 1. Ordinarily, -the declarations of the person who last had possession of a writing, are not receivable as evidence of its loss, if he be alive and in the jurisdiction of the court.
In 1 Greenleaf on Evidence, § 163, the rule, as to proof of the testimony of a witness given on a former trial, is stated as follows: “When the testimony was given under oath, in a judicial proceeding in which the adverse litigant was a party, and when he had the power to cross-examine, and was legally called upon to do so, the great and ordinary test of truth being no longer wanting, the testimony, as given, is admitted after the decease of the witness, in any subsequent suit between the same parties. It is also received, if the witness, though not dead, be out of the jurisdiction; or can not be found, after diligent search; or is insane, or sick; or is unable to testify, or has been summoned, but appears to have been kept away by the adverse party.” That the witness was examined under oath in a judicial proceeding, and that the opposite party had an opportunity, and was legally called upon to cross-examine, are essential requisites to admissibility. It sufficiently appears that the witness Culp was beyond the jurisdiction of the court; that interrogatories were filed, and an affidavit of his non-residence made, and that his answers to the interrogatories were taken; but it is not shown that his deposition was used in evidence on the former trial, nor that defendant had notice of the filing of the interrogatories, or was called upon to cross-examine.
The second plea of defendant sets up that, by the contract for the transmission of the message, defendant was not to be liable for damages from any failure to transmit or deliver, or from any error in the transmission or delivery of an unrepeated message, and, to guard against errors, would repeat any telegram for extra payment, or one-half the regular rate; and in such case, not to be liable for damages beyond fifty
On the former appeal in this case, the several grounds of demurrer to the complaint, now presented for consideration, except two interposed after the case was remanded, were fully considered, and held not to be well taken. The same question relating to the liability of the telegraph company for failure to transmit and deliver in due time a message in cipher, which was not explained to the operator, then presented by demurrer alone, is now raised by both demurrer and charges. The court held, when the case was formerly before us, that though the message was in cipher, and its contents or importance was not communicated to the operator, if the company received and agreed to transmit and deliver it, and failed to do so in consequence of the fault or neglect of its agents, it is liable for the damages naturally and proximately resulting therefrom; but not for damages arising from special, collateral circumstances not communicated, and in reference to which the parties are not presumed to have contracted.—Daughtery v. Amer. Un, Tel. Co., 75 Ala. 168. This question was subsequently re-considered in West Un. Tel. Co. v. Way, supra, and the rule declared in the former case re-affirmed. We see no reason for departure from the ruling.
But it is insisted, that defendant’s prior purchase of three hundred bales of cotton, two hundred to be delivered in May, and one hundred in June, 1881, are special circumstances not communicated. The telegram, as translated, is: “Sell on account of Daughtery, to cover, 100 June, 200 May.” This was a direction to cover the previous contracts of purchase of cotton to be delivered in the same months, and was equivalent to a direction to sell* the cotton previously purchased. It was so construed on the former appeal, and ruled that the natural and proximate damages were the
It is shown that Renfro Bros, were tbe brokers of Daughtery, and that Lehman Bros., to whom tbe telegram was addressed, were their correspondents, and members of tbe Cotton Exchange in New York. Whether Lehman Bros, were tbe brokers of Daughtery, or whether there were any contractual relations between them, is immaterial. Tbe liability of tbe defendant is not affected by tbe character of their relations, or by tbe want of contractual relations. Tbe several charges in reference to this question were abstract, and properly refused.
Tbe other assignments of error have not been pressed in argument, and it is unnecessary to consider them.
Reversed and remanded.
Dissenting Opinion
dissenting. — I dissent from so much of tbe opinion of a majority of the court in this case as relates to tbe damages recoverable for tbe failure to transmit and deliver cipher telegrams. I think tbe sound rule is to limit tbe measure of damages in these cases to such as are nominal, or, at most, tbe price paid for sending tbe message. Tbe reason and authorities in support of this conclusion are fully discussed in my dissenting opinion in tbe Western Union Tel. Co. v. Way, 83 Ala. 562-565.
