227 Pa. 522 | Pa. | 1910
Opinion by
March 28, 1910:
The plaintiffs are engaged in the dry goods commission business in the city of Philadelphia. They do not purchase the goods but sell to the trade and charge a commission on them. They are the exclusive selling agents for the GlennLowry Manufacturing Company of Whitmire, South Carolina, manufacturers of dry goods. In reply to a telegram containing an offer for a certain quantity of goods, the Glenn-Lowry Manufacturing Company on March 20, 1906, deposited with the defendant company at Whitmire, South Carolina, the fol
According to the plaintiffs’ private code, “decade” meant certain goods manufactured at the mills of the Glenn-Lowry Manufacturing Company, the word “chapel” meant four and seven-eighth cents per yard, and “ chaplet ” five cents per yard.
Relying on the message, the plaintiffs, on the day it was received, sold to Garner & Company of New York, 30,000 pieces of the goods at four and seven-eighths cents a yard. The sales note provided that “ if the production of the Glenn Mills shall be curtailed during the time above named by strikes, or lockouts to counteract strikes, or any unavoidable casualty, the deliveries shall only be proportionate to production.” Immediately after the sale the plaintiffs wired the Glenn Mills to ship the goods. The error in the transmission of the telegram was then discovered. The Glenn-Lowry Manufacturing Company refused to deliver the goods which had been sold to Gamer & Company at the price of four and seven-eighths cents per yard, and compelled the plaintiffs to • pay five cents per yard for them. This resulted in a loss to the plaintiffs of $1,999, and to recover that sum the plaintiffs instituted this action. The learned court below held that the plaintiffs were entitled to recover, and that the measure of damages was the actual loss sustained by them by reason of the error in the transmission of the message. The defendant company has appealed.
The record raises two questions for consideration: (1) Can the plaintiffs, the addressees and receivers of a telegraphic message, recover under the facts of this case; and (2) if there can be a recovery, what is the proper measure of damages.
1. It is settled in this jurisdiction and by the great weight of authority in this country that a telegraph company is liable in tort to the addressee for injuries arising out of the negligent transmission of an intelligible message. A different rule prevails in England and possibly in some states of the Union. New York & Washington Printing Telegraph Co. v. Dryburg, 35 Pa. 298, was an action on the case brought by the recipient of a message against the telegraph company for the careless and erroneous transmission of a telegram. Between the receipt of the message and the time he learned of the error in transmission, the plaintiff acted on the information contained in the telegram and sustained a loss. He brought the action to recover damages for the loss resulting from the error in transmission. A judgment of the trial court against the telegraph company was sustained by this court. It was held that if a telegraph company negligently or willfully violates its duty of sending the very message prescribed, it is responsible in an action sounding in tort to the party to whom the erroneous message is addressed, and further, that even if the telegraph company be considered only as the agent of the sender of the message, it is liable to third persons, as a wrongdoer, for any misfeasance in the execution of the duties confided to it. In delivering the opinion, Woodward, J., said (p. 302): “The wrong, then, of which the plaintiff complains, consisted in sending him a different message from that which they had contracted with LeRoy to send. That it was a wrong is as certain as that it was their duty to transmit the message for
The rule or notice of exemption from liability printed on the back of the blank on which the sender writes the message does not apply to the recipient of a message, and will not relieve the telegraph company from liability to him for errors in transmission: New York & Washington Printing Telegraph Co. v. Dryburg, 35 Pa. 298; Tobin v. Western Union Telegraph Co., 146 Pa. 375; Olympe De La Grange v. Southwestern Telegraph Co., 25 La. Ann. 383. The notice on the back of the blank was to the person who sent the message and not to the one who received it: Western Union Telegraph Co. v. Richman, 19 W. N. C. 569. If, however, the addressee is bound by the rules printed on the back of a message limiting the company's liability, it would not avail the company in an action brought against it in this state for the negligent transmission
While, as we have seen, our own cases hold that in an action by an addressee to recover damages for loss sustained by the erroneous transmission of a message, he is not bound by stipulations on the back of the message restricting liability of the telegraph company for mistakes in unrepeated messages, the learned counsel for the appellant cite and rely on Coit v. Western Union Telegraph Co., 130 Cal. 657; 53 L. R. A. 678, and Halsted v. The Postal Telegraph Cable Co., 193 N. Y. 293; 19 L. R. A. (N. S.) 1021, as announcing a different doctrine. Both of these cases were ruled on the ground that the sender was the agent, specially authorized by the addressee, to send the message, and hence was bound by the contract made by the sender with the telegraph company. In the Coit case, it is said in the opinion: “Plaintiffs telegraphed to Dennis, in St. Louis, requesting him to send by telegram the price of 220 tons of steels rails. In pursuance of that request, Dennis telegraphed the desired information. It is thus plain that Dennis performed service for plaintiffs at their request. And, that being so, we deem the conclusion irresistible that, in the performance of the service, Dennis was acting for plaintiffs, and was their agent. ... Dennis, in sending the,message, being the agent of plaintiffs, they were bound by the contract made with the defendant. Plaintiffs, by requesting him to send the message, necessarily authorized him to contract with
So far as the evidence discloses in the case at bar, the plaintiffs did not, as in the California and New York cases, request the Glenn-Lowry company to wire them the prices of the goods. They telegraphed the company an offer for the goods without requesting a reply. Acting for itself and not as the agent of the plaintiffs, the Glenn-Lowry company wired the prices at which it would furnish the goods.
2. When the sender is injured by a mistake in the transmission of a telegram which indicates the character and purport as well as the importance and urgency of the message, the damages recoverable are such as may fairly and reasonably be considered as arising naturally from a breach of it, or may reasonably be supposed to have been in contemplation of the parties at the time of making the contract as the probable
In actions of tort brought by the addressee for the erroneous transmission of an intelligible message, the plaintiff is entitled, under our own cases, to recover the actual damages he has sustained. New York & Washington Printing Telegraph Co. v. Dryburg, 35 Pa. 298; Western Union Telegraph Co. v. Richman, 19 W. N. C. 569. The contention of the defendant company is that the message involved in this case was in cipher and unintelligible except to the sender and sendees, and hence the doctrine of these cases does not apply. We are not convinced of the correctness of this position. We think the message sent to the plaintiffs disclosed on its face that it related to a business transaction of importance which required immediate attention by the sendees. It was addressed to a well-known business firm of the city of Philadelphia and was signed by the Glenn-Lowry Manufacturing Company. It was dated March 20, 1906, and reads: “Anxious that you sell summer deliveries of decade at chaplet.” There were but two
The language of the message in Western Union Telegraph Co. v. Landis, 21 W. N. C. 38, is much less intelligible and disclosed less urgency than the language of the message in the present case, yet we held it sufficiently plain on its face to justify a verdict and judgment for the actual loss sustained by the addressee by reason of error in its transmission. The message as deposited with the telegraph company at the stock yards in Pittsburg in that case reads: “One cost six half two wooled Texas five sixty take all off evening.” In course of transmission to the abattoir, West Philadelphia, its destination “sixty” was changed to “six.” In the opinion of the court it is said: “There was enough upon its face to indicate to the operator that it referred to sheep to be shipped to Philadelphia, and the price.”
In Ferguson v. Telegraph Co., 178 Pa. 377, a code name was used for the sendee and there was nothing in the message to indicate the meaning of its contents. The three intelligible words gave no indication of the character or importance of the transaction to which it related. For all purposes of information to the operator, therefore, it might as well have been entirely in cipher.
It is true, as contended by the defendant company, that it was the duty of the plaintiffs to minimize the damages which they had sustained by the negligent conduct of the company. It is equally true, however, that the plaintiffs were required to observe their contract with Garner & Company and deliver the goods they had sold them on the faith of the erroneous telegram. While the goods sold to Garner & Company were
If the plaintiffs had been advised of the error in transmitting the telegram before they acted upon it and sold the goods to Garner & Company, they would not be in a position to assert their claim against the defendant. The sale, however, was made prior to the discovery of the mistake in the message and relying on its correctness. The goods sold, as we hold, were the product of the Glenn Mills, owned and operated by the Glenn-Lowry Manufacturing Company. The uncontradicted evidence is that the plaintiffs paid five cents per yard for the goods, and had sold and were required to deliver them to Garner & Company at four and seven-eighths cents per yard, thereby losing one-eighth of a cent per yard on the quantity sold. It is contended, however, by the defendant that the plaintiff received a commission from the manufacturing company of four per cent on the gross selling price of the goods and that the commission amounted to more than one-eighth per cent per yard and, therefore, the plaintiffs sustained no loss. We agree with the learned trial judge that the defendant company cannot defalk, as it were, the plaintiffs’ commissions against the plaintiffs’ loss on the sale. The plaintiffs are the exclusive selling agents and bankers of the Glenn-Lowry Manufacturing Company, and receive a fixed commission of
The view we take of this case relieves us from the necessity of determining the proper measure of damages in an action brought by the sendee against a telegraph company for mistakes in transmitting a cipher or unintelligible message.
The judgment is affirmed.