150 Mo. App. 149 | Mo. Ct. App. | 1910
This is a suit for damages on account of an alleged breach of contract for the transmission and delivery of a telegraph message. After hearing the proof, the court gave judgment against defendant for nominal damages only and plaintiff prosecutes the appeal.
It appears plaintiff was at Twin Falls, Idaho, negotiating as to the establishment of a mill at that point and had written a letter to J. C. McCaskill of St. Louis, Missouri, to telegraph him about some business matter. As to the contents of the letter mentioned nothing appears in the evidence and with it we are not concerned. It may be said also that the telegram itself did not disclose on its face that it pertained to a business matter any more than it did to some other. McCaskill called upon the agent of defendant telegraph company and delivered to him the following message for transmission on April 16, 1907:
“C. E. Fitch, Twin Falls, Idaho.
“Letter‘will give satisfaction comply with same at once.
“J. O. McCaskill.”
The telegram was marked collect from the sendee at the instance of McCaskill, the sender who was acting as agent for Fitch, the sendee, in the' transaction. McCaskill testified that at the time of delivering the message to defendant’s agent he informed him it was very important the message should be rushed through but did not mention the fact that it pertained to a business matter of any kind. It appears plaintiff was at Twin Falls, Idaho, where he called at defendant’s office on the evening of the same day and inquired if there were a message for him. The man in charge of the office informed him there was none. On the following day, defendant’s agent at Twin Falls reported to its agent at St. Louis that it was unable to deliver the message to plaintiff and instructed the St. Louis agent to collect the price for its transmission from the sender, McCaskill. Upon receiving such instructions, defendant’s agent- in St. Louis called upon McCaskill, notified him the message was undelivered and insisted that he should pay the charges. McCaskill says he instructed defendant’s agent at this time that he knew plaintiff Fitch was at Twin Falls, Idaho, and the message could be delivered to him. He says, too, that in this conversation he informed defendant’s agent the message pertained to an important business matter and that defendant should make further efforts to deliver it for that reason.
We infer from the testimony that he did not pay the price for sending it until after a second call was made upon him the day following. Plaintiff states that not having received the expected telegram he made arrangements to come to St. Louis forthwith and called a second time at defendant’s office at Twin Falls on the
The suit proceeds as for a breach of defendant’s contractual duty and special damages are sought to be recovered. The items of damage sued for are the amounts expended by plaintiff in paying his railroad fare from Twin Falls, Idaho, to St. Louis and return, together Avith sleeping and dining car expenditures while en route, and five dollars a day for the time necessarily consumed in making the trips. It is shown that had the message been delivered, the trip to St. Louis would not have been made. The court gave judgment for nominal damages only, for the breach of the contract, on the theory that defendant could not be required to respond for special damages in the absence of proof tending to show such damages were reasonably within the contemplation of the parties at the time the contract for transmitting the message was entered into.
On appeal, plaintiff’s argument for a reversal of the judgment is two-fold. It is urged, first, the message on its face sufficiently apprised defendant of the fact that it pertained to an important business transaction and, second, that if it did not, the fact 'was communicated to defendant by McCaskill, the sender, on the day after the contract for its transmission was made. It may be said at the outset that the suit proceeds as for a breach of the contract and not in tort for the wrong. The form the action has assumed is important only, however, in so far as it relates to the rules by which a recovery may be measured, for notwithstanding the form of the remedy and the measure of damages thereon, the defendant’s obligation to exercise ordinary care and reasonable promptness in transmitting and delivering the message is the same in either contract or tort. But, having sued for a breach of the contract, plaintiff will be permitted to recover only such damages as may fairly and reasonably be considered to arise naturally in the
“O. E. Fitch, Twin Falls, Idaho.
“Letter will give satisfaction comply with same at once.
“J. O. McCaskill.”
Nothing in this message indicates an important business transaction was in course or contemplated between the parties thereto or any other parties for that matter. It may relate as well to some social matter as to one of business and no one may discern its true character from its words. Upon reflecting over it, it may be said to imply that McCaskill had written Fitch a letter which would give him satisfaction about some matter not disclosed and that Fitch was requested to comply with the same at once after having received satisfaction from such explanations as were therein contained, or that a matter of some nature not disclosed might be satisfactorily explained to McCaskill by a letter from Fitch, so that McCaskill would comply with the instructions contained in the letter at once. However, it no more suggests an important business matter than it does that McCaskill had written a letter explaining or to the end of satisfying Fitch about some social affair and requesting him to comply with some instruction contained therein,, or that Fitch was expected' to write McCaskill a letter pertaining to arid explaining some social matter and containing instructions with which McCaskill was willing to comply on receipt. But it is said the sender,' McCaskill, notified the agent at the time the message was delivered to him in St. Louis that it was very important the message should be rushed through and this was sufficient for the purpose. The mere fact the sender notified the agent it was very important the message should be rushed through does not aid the matter, for he omitted to convey the essential notice that it related to a business transaction. A message may be important in a sense so that it should be rushed through and relate entirely to some social mat
However, as before stated, this action proceeds as for a breach of the contract. We have discussed the tort feature of the case for the reason counsel for plaintiff pressed it forward. It is the established law that when the form of the remedy adopted proceeds as for a breach of contract, the party may recover only such damages as may fairly and reasonably be considered either as arising naturally according to the usual course of things from a breach of the contract itself or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it. This is the rule of Hadley v. Baxendale, 9 Exch. 341, and it applies as well to suits counting on the breach of contract to transmit a telegraph message as to any other. Indeed, such is the accepted doctrine throughout the country when the contract and not the tort is counted upon for damages. See the following cases in point: Melson v. W. U. Tel. Co., 72 Mo. 111; Abeles v. W. U. Tel. Co., 37 Mo. App. 554; Hughes v. W. U. Tel. Co., 79 Mo. App. 133; Primrose v. W. U. Tel. Co., 154 U. S. 1; Jones on Telegraph Companies, secs. 516, 517.
In the case now in judgment the damages sued for are not such as naturally flow from the breach of such a contract but are special in character. In order to recover for such special or consequential damages, it is essential for plaintiff to show such a state of facts as evince them to be reasonably supposed to have been within the contemplation of the parties as the probable re-
The judgment should be affirmed. It is so ordered.