46 F. 40 | U.S. Circuit Court for the District of Northern Mississippi | 1891
This action is brought by the plaintiff against the defendant company for damages by reason of an alleged breach of contract in failing to transmit in due time the following message:
“ Columbus, Miss., Feb. 20, 1890,
“To Messrs. Latham, Alexander <& Co., New York: Sell two hundred Tenn. Coal & Iron.
[Signed] “E. Cahn.”
—to which the defendant has interposed the general issue of not guilty, which casts upon the plaintiff the burden of proving that the message was delivered to defendant’s agent, and was not delivered in due time to the sendees. It is admitted that it was delivered to defendant’s agent at Columbus, and the price of the message (30 cents) paid for its transmission to Latham, Alexander & Co., of New York. It is also admitted that it was not delivered to Latham, Alexander & Co. until the 28th day of February, 1890, which was not a prompt delivery, or in due time, and which failure was a breach of the contract, and entitles the plaintiff to a verdict for the actual damage sustained.
The plaintiff alleges in his declaration that if the message, had been delivered on the 21st of February, 1890, the said brokers would have sold the 200 shares of stock at $73 per share, and that on the 28th of February, 1890, -when the message was received, the same number of shares could have been bought at $55 per share. It being admitted that the face value of said stock was $100 per share, the plaintiff thus claimed the difference between $73 and $55 per share upon the 200 shares as the measure of his damage. It is admitted that the plaintiff did not own or have in the possession of his said brokers on the 21st of February, 1890,