294 Mass. 543 | Mass. | 1936
This is an action in contract or tort by the sender of an unrepeated night letter telegram to recover damages alleged to have been sustained by the incorrect transmission of the message. The parties stipulated that, if there was any evidence which would justify a jury in finding for the plaintiff, damages were to be assessed for the plaintiff in the sum of $500. The case is here on the plaintiff’s exceptions to the trial judge’s direction of a verdict for the defendant.
There was evidence tending to show the following facts: The plaintiff, a shoe manufacturer in Haverhill, had on hand shoes of a kind previously purchased from him by the Penn Shoe Company of Pittsburgh, Pennsylvania. To that company the plaintiff wrote on a telegram form furnished by the defendant a message of this tenor: “We have on
THE FLOOR WHT KID REGENT STOCK SHOES BENNIES AND CHARLIES PRICE $1.75 NET ADVISE BY WIRE IF YOU CAN use some.” It was received and charged for as an unrepeated night letter on June 25, 1931, at the defendant’s Haverhill office. It was delivered to the addressee in Pittsburgh the next morning, Friday, June 26, 1931, with $1.25 substituted for $1.75 as the price. The word “white” was also substituted for the letters “wht,” but this was not a material matter and nothing turns upon it. The executive of the Penn Shoe Company handling this business knew the price of $1.25 per pair for shoes of that grade to be very substantially below the market price. In fact, the fair market value at the time was $2.25 per pair. Immediately upon receipt of the message the Penn Shoe Company wired for some of the shoes. Ten cases, each containing thirty-six pairs, were ordered by it and shipped by the plaintiff to it on Friday, June 26, and arrived in Pittsburgh Monday morning, June 29. A second order was sent on that same Friday afternoon and in response seven additional cases were shipped by the plaintiff on Saturday. On Monday the Penn Shoe Company wired the plaintiff to ship all shoes of that kind in stock. The
On July 1, 1931, the plaintiff made formal demand in writing on the defendant for damages. The difference between the fair market value of the shoes and the price paid for them by the Penn Shoe Company amounted to $1,258. It was conceded by the plaintiff at the trial that under the defendant company’s standard form of contract, and in accordance with the tariffs duly published by it and
There is conflict in the authorities as to the liability of the sender in case of mistake in the transmission of an offer or acceptance by telegram. It is held in some jurisdictions that a party making an offer by telegram is responsible for the correct transmission of his message and is bound by it in the terms in which it is actually delivered to the person addressed. This is on the theory that the carrier of the message is the agent of the sender. Western Union Telegraph Co. v. Shotter, 71 Ga. 760. Des Arc Oil Mill v. Western Union Telegraph Co. 132 Ark. 335. Ayer v. Western Union Telegraph Co. 79 Maine, 493. It is held in other jurisdictions that the telegraph company is in no proper sense a private agent of the sender of the message. The public character of a telegraph company, the special powers conferred upon it by government, the franchises enjoyed by it, and the nature of the service rendered by it, all tend to take it out of the class of ordinary private agents and to render it an independent contractor. Its business is affected with a public interest. Its methods of conducting its business are beyond the control of the sender of a message. Its rates and many of its activities and practices are regulated by public authorities. It selects its own route for transmission of messages. It was an interstate carrier transacting interstate commerce in the case at bar. In this particular it is subject to regulation by the Congress, whose power has been exercised. Primrose v. Western Union Telegraph Co. 154 U. S. 1. Western Union Telegraph Co. v. Speight, 254 U. S. 17. Western Union Telegraph Co. v. Esteve Brothers & Co. 256 U. S. 566. Western Union Telegraph Co. v. Priester, 276 U. S. 252. It is required to serve the public without discrimination. It is charged by law with the liabilities of a common carrier. It enjoys most, if not all, the privileges of a common carrier. It ought in reason to be responsible in proper cases to the receiver as well as to the sender of the message. All these
It follows that, since the defendant was not the agent of the plaintiff in the usual sense in transmitting the message of the latter to the Penn Shoe Company, but was an independent carrier of intelligence for hire, the plaintiff was not bound by the price of $1.25 per pair erroneously stated in the telegram as delivered by the defendant to the Penn Shoe Company instead of the price of $1.75 stated in the message delivered by the plaintiff to the defendant for transmission. The latter was the only price fixed or sanctioned by the plaintiff. The message as delivered by the defendant to the Penn Shoe Company was not the plaintiff’s offer. The orders sent by the Penn Shoe Company did not complete a series of contracts between it and the plaintiff. The parties were never in agreement as to terms. The plaintiff was not bound to sell at the price contained in the telegram as delivered. It is not necessary to consider whether the message as handed by the plaintiff to the defendant constituted an offer. See Smith v. Gowdy, 8 Allen, 566; Ashcroft v. Butterworth, 136 Mass. 511; 1 Wil-liston on Contracts, Rev. Ed. § 27; Am. Law Inst. Restatement: Contracts, § 25. If it be assumed to be an offer, that offer was not transmitted to the Penn Shoe Company. It never was accepted and never became a contract between the plaintiff and the Penn Shoe Company.
The evidence showed a breach of contract by the defendant in failing to deliver the message handed to it for transmission to the Penn Shoe Company. The plaintiff is entitled to recover such damages as resulted to him from that breach as a proximate cause. The plaintiff’s contention is that he is entitled to recover the difference between the market value of his shoes and the price paid to him by
That damages to the plaintiff might have been inferred falls within the principle illustrated by Maynard v. Royal Worcester Corset Co. 200 Mass. 1, 8; Cross v. Sharaffa, 281 Mass. 329, 331; Wheelock v. Postal Telegraph Cable Co. of Massachusetts, 197 Mass. 119,126; Potier v. A. W. Perry, Inc. 286 Mass. 602, 606-607; Wrobel v. General Accident Fire & Life Assurance Corp. Ltd. 288 Mass. 206, 211. No question arises as to the amount of damages because a stipulation of parties covered that point if there was any evidence which would justify a finding for the plaintiff.
The result is that a verdict was erroneously directed for the defendant. The exceptions are sustained and, in accordance with the stipulation, judgment is to be entered for the plaintiff in the sum of $500,
So ordered.