127 Ga. 423 | Ga. | 1907
(After stating the foregoing facts.)
It is obvious that the plaintiff can not recover brokerage based on an acceptance of his offer, where both parties treated the offer made as not accepted or binding; nor can he recover it on the mere possibility that had the message been transmitted as written, the proposition contained might have been accepted.
“Damages are given as compensation for the injury done, and
In 2 Mechem on Sales, § 1763, in dealing with the case of a purchase of goods for resale where the seller has notice or knowledge-that the goods are being purchased for resale in a particular market,, or to be supplied in pursuance of a particular contract, it is said that “If he breaks his contract, damages for losses caused thereby, if not uncertain or remote, may be recovered.” In section 1770 a. summary of English cases on the subject is given, in which occurs, the following: “On the seller’s breach of contract to deliver, the-buyer may adopt one of two courses: (1) He may elect to fulfil his subcontract, and for that purpose go into the market and purchase the best substitute obtainable, charging the seller with the difference between the contract price of the goods and the price of the goods substituted. (2) He may elect to abandon his subcontract, and is entitled to recover as damages from the seller his loss, of profit on the sale, and further to be indemnified by him in respect of any damage (including costs reasonably incurred) or penalties, which he has been compelled to pay for breach of his subcontract;, but unless the amount of the particular damages or penalties has-been made known to the seller, the buyer is not entitled to recover their amount as a matter of right, though, if reasonable, the jury-may assess the indemnity at that amount.” See, also, 1 Suth. Dam. (3d ed.) §82; Elbinger Actien-Gesellschaft v. Armstrong, Law Rep. 9 Q. B. 473; Hydraulic Engineering Co. v. McHaffie, Law Rep. 4 Q. B. Div. 670; Grebert-Borgnis v. Nugent, Law Rep. 15 Q. B. Div. 85. These authorities refer to cases between two contracting parties, but there is an analogy between them and the case at bar on the subject now under consideration. In Western Union Tel. Co. v. Shotter, 71 Ga. 760, and Western Union Tel. Co. v. Flint River Lumber Co., 114 Ga. 576, the sender of the telegram fulfilled a contract resulting from an acceptance of a proposal erroneously transmitted by -the company, and sustained actual damage.
It is sought to analogize the claim to recover in this case to the
A mere general statement that the plaintiffs vendee is demanding damages of him and is holding him liable therefor is not sufficient to show that the plaintiff has yet been damaged. If anal■ogies to cases of personal injury are to be considered, let us take •another illustration. A municipal corporation is liable to one who is injured by reason of a hole negligently left in its sidewalk unguarded after notice. The person who dug the hole may be liable ■over to the city. Suppose that a person should be injured by reason of such defect in a sidewalk, and should notify the city that he intended to claim damages and hold it liable, would it be contended
It appears from the declaration that the plaintiff did not pay the' ■charge for sending the message, but only “assumed” such payment "and became liable therefor.” Here is another alleged liability. But we can not hold that he has also been damaged by the company because he is liable to it for the unpaid toll, and that he may recover of the company that amount because he has not paid it, but may be-called on for payment in the future. Indeed he does not ask to recover on this account. See 27 Am. & Eng. Enc. Law (2d ed.), 1069, head “Announcing price or state of market;” Western Union Tel. Co. v. Dubois, 128 Ill. 248 (15 Am. St. 109); Hays v. Western Union Tel. Co., 70 S. C. 16 (67 L. R. A. 481); Western Union Tel. Co. v. DuBois, 29 Ill. App. 219 (an action by the receiver of a message).
Judgment affirmed.