47 Ga. App. 456 | Ga. Ct. App. | 1933
Lead Opinion
Jenkins and Ryan, brokers, residing in New York City and engaged in the purchase and sale of cotton for customers, for cash or on margin, for instant or future delivery, sued Steve Cobb and the Western Union Telegraph Company, alleging that Cobb individually and as agent of the said telegraph company entered into a scheme or plan with one T. W. Benson, who was alleged to be irresponsible and insolvent, whereby Cobb, as agent of the telegraph company and as a party to such fraudulent scheme or plan, sent over the wires of the telegraph company to the plaintiffs in New York City a series of false, fraudulent, and fictitious telegrams which were delivered to them by said telegraph company in that city. Each telegram so sent was set out in detail in the petition and was in substance as follows (the following are used as illustrations showing the general plan ) : “September 20, 1928. Warthen, Georgia-. Jenkins and Ryan, New York City. Remitting one thousand dollars credit B. W. Thomas. [Signed] Warthen
We wish to consider this petition from two viewpoints: the one is whether or .not the allegations of fraud are sufficient to set out a cause of action, and the other is whether or not the allegations of damages are such as would make the defendant legally liable. An action for deceit is an action sounding in tort. Brooke v. Cole, 108 Ga. 251 (33 S. E. 849); Rutherford v. Irby, 1 Ga. App. 499 (57
Under the cases cited above there seems to be no room for doubt that where an agent of a telegraph company wilfully, knowingly, and fraudulently sends a false and fictitious message to an addressee, the company thereby becomes liable for any damages occasioned as a result of the sending of the message. This seems to be true whether-there is a forgery of the message in the name of a real and solvent person or there is an invention of a fictitious person intended to deceive and which does actually deceive the addressee and cause him -to act to his own hurt and damage. There seem to be no cases in Georgia directly in point. According to the principle laid down in the case of Gardner v. Western Union Telegraph Co., 14 Ga. App. 403 (81 S. E. 259), as a condition precedent to the recovery of damages it must be alleged and shown that the purported sender, upon the strength of whose alleged telegram credit was extended, was a person able to respond in the event the messages had been genuine, for it was credit extended to this person, after all, that caused the extension of credit and consequent loss. In that case, however, there was a real person who was the purported sender of the message, while in this case the purported sender was fictitious, and therefore there could be no allegation here that the sender was solvent and able to respond. However, irrespective of the soundness of the reasoning for such a holding in that case, we hold, under the authority of a long line of decisions directly in point from
The plaintiffs in this case lived in New York; they received a telegram delivered to them by the Western Union Telegraph Company, stating that the bank of Warthen was remitting to them the sum of $1000. The telegram was signed, '“Warthen Banking Company.” It is certainly a sufficient allegation to withstand a general demurrer to say that it could have been and was deceived thereby. Plaintiffs had a right to rely on the genuineness of a telegram so sent, not as to the solvency of such bank, but at least of the reality of the existence of such banlc. It would be true that if the addressee had notice of the nonexistence of such bank or had sufficient cause to put it on notice to make inquiry in reference to the same before acting thereon, it could not recover, for the reason that if the falsity of the telegram were known, it could not recover, irrespective of its falsity. If any issue as to this should arise, the facts might be determined by the jury; for purposes of demurrer the petition is sufficient as to this point.
The next question to be considered is, did the petition sufficiently allege damage to the plaintiff? It is insisted by the very able counsel for the defendant in error that all the plaintiff alleges that he lost were prospective profits, and that he may not recover such profits, because they were too vague and remote to be determined with any degree of accuracy. The petition as amended states that all the transactions with reference to the purchase or sale of cotton were with the petitioners. Notwithstanding the fact that the plaintiffs sell their own cotton to their customers and buy from their customers the customers’ own cotton, we are of the opinion that the supposed profits sued for are such as may be legitimately
On the trades alleged to have been made on the direct telegraphic orders of the supposed parties to the contract, the plaintiff would be entitled to recover any profits capable of exact computation and legally ascertainable which would have been made under the terms of the contract of purchase or sale as made. Those contracts entered into on October 1, which upon discovery of the alleged fraud
Judgment reversed.
Concurrence Opinion
concurring specially. This is a suit for a tort and damage must be shown. Where it is alleged that A instructs B, a broker, to buy articles at a certain price, and the broker follows the instructions, and A afterwards instructs the broker to sell the articles at a reduced price, and the instructions are followed, and the broker thereby loses a named amount of money, the allegations are rather allegations of actual loss or damage than allegations of loss of profits, and the amount of the broker’s loss is recoverable.
Dissenting Opinion
dissenting. In my opinion, the petition as finally amended, properly construed (most strongly against the plaintiff), fails to set out any recoverable item of damages, and the court did not err in sustaining the general demurrer.