174 Mo. App. 435 | Mo. Ct. App. | 1913
Plaintiff’s action is for damages alleged to have accrued to them by reason of the failure of defendant to deliver a telegram they sent from Kirksville, Mo., to E. O. Millay at Romeo, Mich. A jury was waived and a trial had by the court which resulted in a finding and judgment for plaintiffs in the sum of $180.
The telegram was delivered to defendant’s agent at Kirksville, on Friday, November 10, 1911, at seven o ’clock in the evening, and should have been delivered, in ordinary course, at Romeo on Saturday morning, November 11th. But it was not delivered .until after
Plaintiffs’ claim is that Millay could and would have bought potatoes on the 11th at fifty cents per bushel and could and would have obtained a freight rate to Kirksville of thirty cents per bushel. They also claimed that had the potatoes been bought and shipped at that price and rate they could and would have sold them at $1.10, thereby making a profit of thirty cents per bushel.
Defendant attacks the sufficiency of the evidence to sustain these claims. Any substantial evidence in that respect will suffice to uphold the judgment in plaintiff’s favor and an examination of the record clearly shows that character of proof. Though the telegram was properly addressed by plaintiffs to Millay, it was changed to Mills. And though Millay was known to defendant’s agent at Romeo, and though delivery should have been made Saturday, no personal delivery was made at all and the mail did not get it to him until Monday evening, too late for business. It is true he was absent six hours on Saturday, but this did not, as a matter of law, relieve defendant from delivering at the time he was not absent.
Defendant insists that though negligence in delivery be conceded, there was no evidence upon which an estimate of damages could be based and that the amount allowed by the trial court was merely speculation. We think the record shows the court was well justified in its conclusion. It was shown in plaintiff’s behalf that if the telegram had been delivered potatoes could and would have been bought at fifty cents per bushel and shipped at a freight rate of thirty
But it is said that though there was negligent delay in delivery, it was the duty of plaintiffs to minimize their damages by purchasing and shipping potatoes after receipt of the telegram. While it is the duty of one whom another has injured to make reasonable effort to save himself what he readily and reasonably may (Douglass v. Stephens, 18 Mo. 362; Reynolds v. Tel. Co., 81 Mo. App. 223), we do not find that the court was bound to find such condition or situation existed. But this suggestion makes it necessary to consider the proper measure of damages, and that is really the only difficult question in the case. No instructions were asked and we must, therefore ascertain if the record contains facts which will support the judgment.
Generally expressed, the measure of damages is the difference between the price that the sender of the message agreed to pay for the merchandise and the sum which he would have been compelled to pay at the same place, in order, by due diligence, to have purchased the like quantity and quality of the same species of merchandise. [Western Union Tel. Co. v. Askew, 92 Ark. 133; Western Union v. Hall, 124 U. S. 444; Squire v. Western Union, 98 Mass. 232; True v. Tel. Co., 60 Me. 9; Brewster v. Tel. Co., 65 Ark. 537.]
This statement of the rule of damages is founded upon the duty of the injured party to minimize his loss and it is varied in some instances where the facts of the particular case justify it, by the statement that the damage is the difference between the price the sender of the message was to pay if the delivery had been promptly made and the price he afterwards actually did pay. From this variance .in statement defendant has insisted that since Millay did notmake a
Again, defendant insists that in fact these rules of measurement of damage were not followed by the court, but that speculative profits which plaintiffs might have made have been taken as the basis for the judgment. The trial court may have considered the case from the standpoint of profits which would have been made on resale and we will therefore consider that phase of the case. Profits which are a matter of guess are too problematical as a measure of damage, but they may be brought within the limits of reasonable certainty and thus become the basis of an action. This we held in a recent case written by Judge Trimble, in a controversy between the parties now before us: Kerns & Lorton v. Western Union Tel. Co., 170 Mo. App. 642. Here there was sufficient evidence (outside of'the terms of the message itself) to uphold a finding by the court that these potatoes were to be bought by plaintiffs for resale on their arrival at Kirksville. It was shown that they had contracted a sale of one-half of the entire lot at $1.10 per .bushel. In such circumstances we think loss of profits is made sufficiently certain and the judgment can be upheld on that ground; the case, we think, is brought within the exception noted by Justice Matthews in Western Union v. Hall,
But a telegraph company should be able to see and understand its importance from the telegram itself or from information otherwise given to it before a liability can attach for substantial damages. [Fitch v. Tel. Co., 150 Mo. App. 149.] In other words, the message itself, if not otherwise known, should disclose to the company the nature of the transaction contemplated and the reasonable probability of loss if negligence follows. [Melson v. Western Union, 72 Mo. App. 111.] It may therefore be suggested that the message was not such as to sufficiently advise defendant, as it should, of the probable or reasonable consequences which would follow from its negligence. [Fitch v. Tel. Co., supra.] Referring to the language of the message, as set out above, we think the meaning is clear that plaintiffs were ordering a purchase of a large quantity of potatoes at a certain price, to be shipped to them and that they were to be immediately notified as soon as the purchase was made. The fact that a business firm were the senders and that the order was for so large a quantity of such character of merchandise (beyond the necessity for individual consumption) with direction for immediate notice of purchase, could not, in reason, fail to impress defendant with the fact that it was a purchase for resale and, of course, at a profit. In Jones on Telegraph & Telephone Companies, secs. 535, 536, many illustrations are given sustaining our conclusions.
The judgment should be affirmed.
