1 Daly 575 | New York Court of Common Pleas | 1866
This action was brought to recover damages a delay on the part of the telegraph company in delivering' a message in Providence, by which the plaintiffs lost the <•••,: ,■ iunity of attaching a house and lot in that city, belor.gmA •’ one Benued, a member of the firm of J. H. Stury A ( who were indebted to the plain tins in the sum of twelve A sand dollars. - '
The property of Bonnet! could be attacked at the sir: creditors only while he was without the State ot Xih-vle !-• He was seen in tl-.e city of FT evo York by Draper, on-1 plai:mí¡% on the 2 Ah of February, 1800, and left by in - o’clock afternoon train of that day for Providence, Ah -« ■
The house and lot which the plaintiffs mea attach was worth over twelve thousand dollars. There a mortgage upon the lot for ten thousand dollars, but the mortgage had not been recorded, and it would seem that by the laws of Rhode Island an unrecorded mortgage is no lien against an attachment. Within a few days afterwards the mortgage was recorded, and during the same month the firm of J. H. Stury & Co. went into bankruptcy in Massachusetts. The house and lot was sold under the mortgage for twelve thousand dollars and twenty-five cents, and all that the plaintiffs have received-upon their debt has been five hundred dollars. Upon this state of facts they obtained a verdict against the defendants for twelve thousand one hundred and forty-five dollars and fifty-five cents, being the amount of their debt and interest, less the five hundred dollars collected by them.
The defendants moved for a nonsuit, upon the ground that they were not responsible, as this was an unrepeated message.
The printed conditions state that in order to guard against mistakes in the transmission of messages, every message of importance ought to be repeated by being sent back from the station at which it had been received, to the station from which it was originally sent. The company also limit their liability for mistakes or delays in the transmission or delivery of repeated messages to an amount not exceeding five hundred times the amount paid for sending the message, and it is further provid--! that the company will n.A be responsible for mistakes or delays
It is apparent from the wording of the conditions, that there is a distinction between the transmission and the delivery of a message; that the first means its transmission from the office or station at which it is received, to the one to which it is sent; and the other, the delivery of it to the person to whom it is addressed. The clause relating to messages which are repeated, refers to mistakes or delays in their transmission or delivery, while that which relates to unrepeated messages refers to mistakes or delays in their transmission alone. What is obviously meant by the latter clause is, that the company will not be responsible for any mistake or, delay in the transmissi 3s-sage, unless it is repeated, which has no applicatic his case, as there was no mistake or delay in the transnh of the message, hut the delay was in the delivery after ic had been correctly transmitted. That the message 'had not been repeated, therefore, furnished no ground for granting a noñsuit.
The defendants also moved for a nonsuit upon the ground tliat the plaintiffs had not shown that they had exhausted all legal remedies against their debtors by judgment and executian, but this was a matter which related merely to the amount of the damages, and did not affect the right of action. The motion for a nonsuit was therefore properly denied.
When the evidence was closed upon both sides, the defendant renewed his motion for a nonsuit upon the ground that the failure of the plaintiffs to issue their attachment in time was ovdng to the want of proper diligence on the part of the afctorney in Providence. This was a point, however, upon which there was a large amount of conflicting testimony, and the question was one which the jury alone could decide.
Before submitting the case to the jury, the judge was requested to instruct them that the only damages which the plaintiffs could recover was the amount paid by them for sending the message, and such other expenses as were incidental to it, and that the value of the property which the plaintiffs meant to attach was not the measure of damages. The judge declined so to do, and at the close of his charge said to the jury, that if they found for the plain Link, che amount of damages should he the sum which the plaintiffs lost by' not having the property
This was assuming many contingencies that might or m'ght not happen, viz.: that the attachment would have be-en U.-iu-d and levied in time, that all the proceedings upon it would L.-ivv been regular, that the plaintiffs would have obtained a ja ! ment, and that twelve thousand dollars would have ¡u- u - leeied upon the execution and paid to them, in satisfaction -f their debt. All this might have happened, but that it w.-A was not sufficiently certain to warrant the assumption of all these circumstances, as a basis for the measure of damyg. \ 1? was, as Judge Stout remarked in the case of The Schoo v. Lively (1 Gallison R., 314), “a calculation upon conjecture-, and not upon facts.”
The plaintiffs have not lost anything which they ever possessed. They lost the chance of availiifg themselves of a newly discovered and extraordinary means of transmitting intollig-iu-.j which, in their case, had their message been delivered as they wished, might have enabled them to take advantage of the circumstance of the temporary absence of their debtor, and attach his property for the amount of their debt. Arsuming that that would have been done had their message been delivered immediately after its arrival in Providence, the *mlv conclusion which it would warrant would be simply that th--y lost such security for the collection of their debt as would afforded by the issuing and levying of an attachment, but -jv r; thing beyond that was mere matter of conjecture. For all r.: was known to the jury, the debtors may have had a (L-tvi..-. '■* the claim in whole or in part. It does not follow becau.attachment is procured that a judgment will also be ubw : yet that «resumption has to he drawn in ibis case to v, .vr
Tire plaintiffs’ debt has not been extinguished or discharged. They cannot he said to have lost it absolutely, as long as Bennett and the other three members of his firm remain liable for it. Thev were discharged as insolvents in Massachusetts, hut that discharge is confined to that State, and does not exempt them from liability in other States or countries. They may all be insolvent now, and unable to pay, but this would not warrant the presumption that they will always remain so. In the contingencies of human affairs, any one of them may become possessed of property hereafter, and be compelled to pay this debt within the period during which, it will survive as an existing obligation against them.
It is suggested that if the defendants should pay this verdict, they would, having paid the plaintiffs’ debt, become subrogated to all the rights which the plaintiffs had to it, and would be entitled thereafter to maintain an action against the debtors for its recovery. Where a surety, to discharge his own responsibility, pays the debt, or where a party having an interest in land, for his own protection pays off an incumbrance, he takes the place of the former creditor, or as it is expressed in the law, is subrogated to all his rights in respect to the debt, and may enforce the payment of it (Hayes v. Ward, 4 Johns. C. R., 123; Sandford McLean, 3 Paige, 117 ; Jenkins v. Continental Ins. Co., 12 How., 66). But I do not deem it necessary to inquire whether the defendants would come within this rule or not, if they should pay this verdict, as the point is wholly immaterial to the question now before us. We are to decide what is the proper measure of damages, and that is a question which must be determined by the contract alone.
In the recent work of Mr. Mylne upon damages, he remarks that in the ease of contract, the measure of damages is much more strictly confined than in cases of tort, and that to hold a party who fails to perform a contract responsible for all that the other party ultimately hoped to get by it, or which it is possible he might have obtained, would be to make him an insurer without any premium for undertaking the risk, and upon the well-considered case of Hadley v. Baxendale (9 Excq. R., 341), he lays down the rulo which governs in all cases ofibreaeh
In the present case, the circumstances known or- communicoted to the defendants when they made the contract, will not warrant the conclusion that they undertook to deliver the message with the understanding that they were tobe answerable for the amount of the debt if it should he lost through their failure to deliver the message immediately after its arrival in Providence, and unless such was the case, they cannot be said, within the meaning of this rule, to have contemplated a liability in damages to that extent.
They were under no obligation to enter into any such engagement. The plaintiffs, in view of the importance of time, and of the contingencies which might happen, had not been especially diligent. They knew of the presence of Bennett in this city before four o’clock in the afternoon, and yet nearly five hours were suffered to elapse before their attorney came to the defendants’ office to have the message sent. It was then in the evening, and after the office had been closed for the ordinary transaction of business, and if the plaintiffs failed to get their message delivered in time, it was owing to the late hour at which they brought it for transmission, and to a state of facts, very natural under-the .circumstances,existing at the of-nee in Providence, when the message was received.
In a case before the Court of Queen’s Bench, in Canada, (Kingshorrn 7. The Montreal Telegraph Co. Decisions by English French and American Courts upon Telegraphic Communications, Utica, N. Y., 1863), the question of the liability of telegraphic companies,in damages, for negligence in the transmission and delivery of messages, came under consideration, and Justice McLeax said : “ It is, in my opinion, extremely doubtfui whether in any such ease, a party who avails himself of the facilities afforded in communicating by telegraph, can expect that a telegraph company shall be responsible for all damages, no matter what amount, which may arise in the hurry of transmitting a message, from any verbal inaccuracy of an operator, or from an omission in forwarding or delivering it when received. It ought not to be expected that so great facilities are to be afforded for so small a remuneration, and at a risk that might bring ruiii upon any company, if obliged to indemnify for every possible loss. Where parties desire to establish such a responsibility, it should he arranged with the telegraph company or its agents, and then every information should be given as to the importance of the message desired to be sent.”
The promise of the clerk that, the message should be delivered at once upon its arrival in Providence, cannot bo construed into an express or special agreement on Ills part, that the com-pony would be responsible for this debt of twelve thousand dollars, if through their failure to deliver the message immediately, ill o plaintiffs should fail in getting their attachment. If such a rosnonsibil: ty can arise only,as Justice McLean suggests, where it is established by an arrangement with the company or its agents, and where every information is given to show the importen,':; the ucs-sige, Yen there was wanting in this case, either tviy surest ?.r •.•mgement- tv that effect, or such a dis
The legal obligation of those who publicly engage in business of transmitting intelligence by means of viecr:-- 1 . graph is, in some of its aspects, to he likened to that uf emw. carriers, but there is a very material difference as to iwtent of their liability. In the case of the carrier, the pxk.. • or property he is to carry is placed in his custody. lie h ;: the time being exclusive control and dominion over it, ami necessarily knows if he fails to deliver it, that the value of r will be lost to the person who entrusted it to his carp. B .r those who, like the defendants, undertake to transmit inlAjgence, do not necessarily know what may be the effect if :k : message should fail to reach the person to whom it is ail-hv.- -■ L and should not bo hold answerable for all the possible e- - - quences, unless it can be assumed from the circiumíain:- i disclosed to them, that they knew exactly wliat was dep-iident upon it, and what would be the result in point of dan - ages, if they failed to deliver it.
If thus advised, they understand the extent and nature ■ the risk they assume, and may protect themselves against k ■ ■ mischances to which all human undertakings aro subj'ví, "; making a special agreement as to the damages in the failure, and at the same time an opportunity is afforded into require-.a compensation proportioned to the risk, a» w- b exerehe unusual vigilance: a very material c<.n-:- -r v/h.ere a heavy lii;biii:y may depend upon tile dkbn"/ - message within a limited point of time. If they aro tv ¡ ■
In Landsberger v. The Magnetic Telegraph Co. (32 Barb. R., 530), the plaintiffs agreed to purchase a quantity of pistols in New York, for a party in San Francisco. The pistols were to he shipped by the steamer of a particular date; the plaintiffs were to have a commission for making the purchase, and were to forfeit five hundred dollars if they tailed in performing the agreement. To enable them to execute it, they transmitted ten thousand dollars from San Francisco to New York, one of the plaintiffs expecting to reach New York about the time of the arrival of the money. He was unexpectedly detained, however, upon his route, and that the pistols might be purchased and shipped within the time agreed upon, he sent a telegraphic, message from Now Orleans to his firm in Now York; advising them of what was necessary to be done in the execution of the contract, and informing them where they would get the ten thousand dollars. The telegraph company, in transmitting the message, made a mistake in the name of the plaintiffs’ firm, in consequence of which, the message did not reach them until it was tau late to perform the contract, whereby they not only lost their commissions, but had to pay the five hundred dollars according to the stipulation in the agreement. It was held. that they could not recover either of these items as damages against the company, upon the ground, that as the telegraph company were not informed of the use that was to be made of the money, and of the consequences that would follow a delay in the receipt of it, they could not be presumed to contemplate any other damage from a delay in the delivery of the message except the loss of the interest upon the money, nine dollars and fifty-nine cents, which, with the sum paid fur transmitting the message, was held to be ail which the plaintiffs could recover. .
In the case now' before us the clerk may be presumed to have nnderstovu that if the message was not delivered immediately, the plaintiffs would lose the opportunity of getting the
In Parker v. The Alta California Telegraph Company (l3 Cal. R., 422), the defendants, through an accident, delay--d fc fourteen liours, to send a message, by which the plaint::”agent was directed to attach a debtor’s property for a df,-!/. > f one thousand eight hundred dollars, in consequence of v.l.i- b delay, other persons obtained attachments, which ab-ofb..-l 1 whole of the property. The Supreme Court of California L/.I that tlie plaintiff might recover from the company tho amom : of the debt as damages ; and" they ordered a new trial mi tlvr. ground. All that I deem it necessary to say in respect t.) decision is, that the Court do not suppórt their opinion by any reference to adjudged cases, and that after giving it the ivspectful consideration to which the judgment of every superi-n tribunal is entitled, I am not satisfied of the correctness of the reasoning upon which it is founded.
•In my opinion, all that the plaintiffs could recover in tim present case, was what they paid for transmitting the mcs'C.g', and such expenses as were incidental thereto, and a new trial, in my judgment should be ordered.
The telegram which the defendants undort- •• - -
to transmit and deliver^ was important, and on its face show - that its design was to secure the commencement oí í-.-j-’ proceedings against the plaintiffs’ debtors by. attachment., \ for-3 fhr fif.-ningt-Xi train entered the State of Bhode L: :* ■ The ao'-'imt of the debt also appeared in d.io telegram. !> : diti-x1. to ibis, the defendants’ agent “ was shown the hup-w: : '
For these reasons I find it impossible to resist the conclusion, upon a deliberate consideration of the facts of this case, that the loss of the plaintiffs’ debt was the natural and proximate damages resulting from the failure of the defendants to deliver the telegram as agreed upon. It has not been thought necessary to consider the question of subrogation further than to state that the tender of the promissory notes of the plaintiffs debtors to the defendants, have placed the latter in a position to reap all the advantages of the debt.
I think the judgment should he affirmed.
Judge Oardozo concurred with Judge Beady.
Judgment affirmed.