58 Wash. 12 | Wash. | 1910
Plaintiff brought this action to recover treble damages, alleging in his complaint that the defendant had opened a telegram addressed to plaintiff, had learned the
It appears that prior to February, 1908, the respondent owned one hundred and twenty acres of timber land in the state of Oregon. The appellant was engaged in the real estate business, and owned some land near Kennewick in this state. The respondent had been in the employ of the appellant. He had offered to exchange his land in Oregon to the appellant for certain land then owned by the appellant, but this offer was refused. The respondent thereupon requested his father-in-law, one L. M. Willcuts, residing in Duluth, Minnesota, to find a purchaser for the Oregon timber land. Mr. Willcuts entered into negotiations with the Weyerhauser Timber Company, which maintained an office at Cloquet, Minnesota, which negotiations resulted in an offer, of $2,000 by that company for the land; whereupon Mr. Willcuts sent a message to the respondent by the Western Union Telegraph Company, as follows:
“Duluth, Minnesota, February 19, 1908.
“C. H. Deighton, Kennewick, Washington.
“Weyerhauser offers two thousand for the land. What shall I do? L. M. Willcuts.”
This telegram was received at Kennewick on the day of its date. It was sealed in an envelope and delivered to the appellant, who said he was going out to where the respondent lived and would deliver the message to him. The appellant neglected to deliver the telegram to the respondent, and on the next day after its receipt, without informing the respondent about the message, entered into negotiations with him which resulted in the exchange of the respondent’s timber
It is argued by appellant that the court should have directed a vei’dict for the appellant. While there was no direct evidence that the appellant opened the telegram or knew the contents of it, the circumstances are fairly conclusive that he did so. He had a short time prior refused to consider an offer of exchange for the timber land. The next day after the telegram was delivered to him he proposed an exchange. He did not deliver the telegram until after the exchange was completed. Thereafter he sought to communicate with the Weyerhauser company at Duluth where that company had no office. The telegram was sent from Duluth, and there was nothing on the outside of the envelope indicating where it was sent from. These are circumstances which the jury had a right to consider, and which with other facts in the case are, we think, sufficient to sustain a finding that appellant had opened the telegram and learned its contents.
It is also argued that the court erred in its instruction to the jury to the effect that the measure of damages was the difference between the value of the land given and the value of the land received, at the date of the exchange. Appellant contends that the court should have instructed that the measure of damage was the difference between the amount of the ■offer of the Weyerhauser company, viz., $3,000, and the
It is also argued that the court erred in not granting a new trial, because one of the respondent’s counsel during the trial held a conversation with one of the jurors. This conversation appears to have occurred in the presence, if not within hearing, of appellant’s counsel, in a public place, and no reference was made to this case in such conversation. While such practice is not to be commended, we think the
We find no error in the record, and the judgment is therefore affirmed.