90 Iowa 129 | Iowa | 1894
On the thirty-first day of March, 1890, the plaintiff was the owner of a stallion named
“Warren, March 31, 1890.
“To C. G. Serrón, Clarksville, Iowa:
Have traded with George Cassidy for Mark, three horses, 1, 2, 3, two hundred balance, fifty dollars young ■cattle. B. B. Herron.”
There was evidence which tended to show that the offer of Cassidy was to be considered withdrawn •on Wednesday, April 2, if not accepted on or before that day; that B. B. Herron had no authority to ■‘accept the offer or sell the horse; that he sent the •dispatch as the agent of Cassidy; and that the agent of •defendant at Warren knew that it related’ to a trade, and that an answer was expected the next day. The •dispatch was received by the agent of defendant at Clarksville before 9 o’clock in the morning of April 1, and was at once given to a messenger to deliver. After an absence of several hours he returned it with the ■statement that he could not find the person to whom it was addressed. The agent then sent a service- message to the office at Warren, stating that plaintiff was unknown in Clarksville, and asking for abetter address. At noon of Wednesday he received an answer stating that plaintiff was a patent fence man, and would be found in town. At about the time that dispatch reached the agent at Clarksville, the plaintiff 'received a letter from B. B. Herron, telling of the trade, and asking why
I. The appellant contends that the verdict' was-not authorized by the evidence, and insists that it exercised due diligence to deliver the message. We-think there was sufficient evidence of negligence to support a verdict for the plaintiff. Clarksville is shown by the record to have been a town of about six hundred.' people in April, 1890. The plaintiff, with his wife and Wintrode, went to Clarksville on the twenty-fifth day of March, 1890, and stopped at the only hotel in the-town, where he registered. A sample of the fence which the machine he was selling made was set up next to the-principal business street, one block from the hotel, from which it could be seen. He and his companion were-then engaged in exhibiting the fence to the public, and in trying to sell the machine, within the free delivery limits of the Clarksville office, during the last day of March and the first two days of April. Belden, the-messenger of defendant, had lived in the town twenty-five years, was running a bus line, carried the mails- and express, and was well acquainted with its people. There is some conflict in the evidence in regard to the-effort he made to deliver the message. He claims to-
The sending of the service message did not relieve it of responsibility, for the reason that the address of the plaintiff as given in the dispatch to him was all that was necessary to enable the defendant to find him readily. It is said that B, B. Herron knew that the defendant had not found his brother, and could have given it the required, information, so that his brother would have been found, and a message accepting Cassidy’s offer received, in sufficient time to have effected the sale, but that he negligently withheld the information. If that be conceded to be true, it does not follow that his negligence was that of the plaintiff, for the reason that he appears to have been the agent of Cassidy for the purpose of sending the dispatch.
II. It is said that if the dispatch was sent by B. B. Herron as the agent of Cassidy, then, so far as it related to plaintiff, the act in sending it was purely voluntary, and conferred upon him no right of action on account of negligence in sending it. The Code provides as follows: “1328. Any person employed in transmitting messages by telegraph, must do so with
III. The court charged the jury that, if plaintiff' was entitled to recover, the measure of damages would be the difference between the price he would have received from Cassidy and the price he afterward obtained for the horse, and the reasonable value of the care and keeping of the horse, with six per cent, interest from the time the horse was sold. The appellant
It is claimed that, if defendant is liable to plaintiff for all the damages he sustained by reason of the delay in transmitting the message, the measure of that damage is the difference between the market value of the horse and the price which Cassidy would have paid for him, had his offer been accepted. That would probably have been true, had there been a market value for the
IY. The blank on which the message was written by B. B. Herron contained the following provision: “No claim for damages shall be valid, unless presented in writing within thirty days after sending the message. ’ ’ The court charged the jury as follows: “If you find from the evidence that the sender of the message was the agent of and acting for the plaintiff in transmitting the message, then it would be binding upon him, unless the plaintiff has shown by evidence that the claim he makes for damages against defendant had not matured, if so, and could not reasonably have been ascertained within thirty days after the message had been sent, if such was the case.” We think that portion of the charge is substantially correct, as applied to the’ facts in this case. The evidence authorized the jury to find that the plaintiff did not know, and could not with reasonable diligence have ascertained within thirty days of the sending of the message, what amount of damage, if any, he had sustained in consequence of defendant’s negligence. The blank required that claims for damages, not notice of claim, to be valid, must be presented within the time stated. A limitation in the agreement for sending the message, which, in its practical effect, would deprive the sender of the message of all redress for injury caused by the wrong of the defendant, would be unreasonable, and to that extent, at least, must be deemed inoperative.
Y. The conclusions announced dispose of all material questions presented for our determination. We find no sufficient ground for disturbing the judgment of the district court, and it is,.therefore, aeítemed.