135 N.Y.S. 583 | N.Y. App. Term. | 1912
This is an action to recover damages alleged to have been sustained by the plaintiff in consequence of the delayed delivery of a telegraph message. The facts are conceded. ’ On September 12, 1910, the plaintiff, who was residing at Allenhurst, F". J., by letter instructed one Bayne, a broker, to purchase 2,000 bags of coffee for August delivery at eight and fifty-three one hundredths cents per pound. The letter was received by Bayne during the forenoon of September 13, 1910. Bayne attempted to purchase the coffee at eight and fifty-three one hundredths cents per pound during the forenoon of September 13th, hut was unable to purchase at this price, as the market had advanced. At about noon of that day Bayne did purchase the required amount of coffee at eight and fifty-four one hundredths cents per pound. Upon completing this purchase Bayne delivered the.following message to the defendant for transmission to the plaintiff:
• . "Sept. 13,. 1910.
■“ To Bobt. A. Chesebrough, .
“218 Elberon Ave.,
Allenhurst, FT. J.: ‘
“ Letter just received bought two thousand August eight fifty four subject your approval eight fifty five now bid must have immediate_zfiplyJby wire.
“ Bush. O. E. Bayne.”
This message was received at Allenhurst a little before one p. m. on September thirteenth. It was not sent to the plaintiff’s residence, and was not delivered until two fifty p. m on that day at the defendant’s office at Allenhurst. Immediately upon its receipt the plaintiff wired the following reply to Bayne:
“ Telegram just received. Purchase approved at eight fifty four,” •
It is claimed that, by reason of the defendant’s delay in transmitting the message on September thirteenth from Bayne to the plaintiff, the plaintiff lost the benefit of the purchase which Bayne had made subject to the approval of the plaintiff, and that his loss is the difference between eight and fifty-four one hundredths cents per pound and eight and eighty one hundredths cents per pound, or $676, which, with interest, is the amount for which the plaintiff recovered judgment. Upon this appeal, the defendant makes no claim that the contract, in pursuance of which the message was received by it for transmission, relieved it of liability. The claim upon which the appellant now relies is, that the plaintiff suffered no loss, because, at the instant the plaintiff filed his message • of acceptance, he became, as against Bayne, the owner of the 2,000 bags of August coffee which had been purchased for his account by Bayne.
It is necessary, therefore, to determine as to whether, as between the plaintiff and Bayne, the plaintiff lost his right to have the purchase treated as having been made for his benefit. If he did not, he sustained no loss, and has no cause of action against this defendant. If Bayne, the broker, was within his rights in treating the purchase as made for his own account, in view of the delay, then the plaintiff has a cause of action against this, defendant. Bayne selected the telegraph as a means of communicating" his offer to the
As between the plaintiff and Bayne, the coffee purchased
It follows that the judgment should be reversed, with costs to the appellant,'and the complaint dismissed with costs.
Lehman and Page, JJ., concur.
. Judgment reversed, with costs to appellant and complaint dismissed with costs. ' ,