| Ill. App. Ct. | Jun 14, 1897
Lead Opinion
deliveber the opinion of the Court.
The message was to be delivered in Chicago; the contract was thus to be performed there, and is to be construed in accordance with the law of Illinois. Lex loci solutiones. Leake on Contracts, 855.
The conditions upon the back of the message, not having been assented to by appellant, formed no part of the contract; the contention of appellee that its liability is limited to the sixty-two cents paid for sending the message, is not the law in this State. Tyler, Ullman & Co. v. W. U. Tel. Co., 60 Ill. 424; W. U. Tel. Co. v. Tyler, 74 Id. 168; W. U. Tel. Co. v. Harris & Comstock, 19 Ill. App. 347" date_filed="1885-12-29" court="Ill. App. Ct." case_name="Western Union Telegraph Co. v. Harris & Comstock">19 Ill. App. 347.
A repetition of the message would not have tended to prevent the breach of the contract by appellee.
A stipulation as to repeating a message does not protect the company from liability for damages which repetition could have no tendency to prevent. Fleischner v. Pacific Postal Tel. Cable Co., 55 Fed. Rep. 738; True v. International Tel. Co., 60 Me. 9" date_filed="1872-07-01" court="Me." case_name="True v. International Telegraph Co.">60 Me. 9.
“ The law imposes upon a person injured by the negligence of another the duty to make reasonable efforts to render that injury as small as possible; and it does not permit him to recover damages for any increase of loss consequent upon a failure to perform that duty.” Gray on Communication by Telegraph, Sec. 100.
This rule does not prescribe particular acts, but a line of conduct. The duty is to make reasonable efforts to render the injury as small as possible; what acts such efforts should consist of depends upon the circumstances of the case.
When appellant obtained knowledge of the negligence, the hogs were on their way to Boston; it was too late to sell them otherwise than in transit, and whether this was practicable does not appear.
When the hogs arrived, if ever, in Boston, it is probable that appellant could then have sold them in open market, and adding to their cost the expense of carriage and sale, might have thus ascertained the loss, if any there were. But was he bound to do this ?
The hogs were not purchased by appellee for sale, but to be manufactured into pork, etc. It does not appear that appellee had any reason for thinking that by at once throwing these hogs upon the Boston market the loss would have been, lessened.
What the expense of transferring them to the Boston or any other market and there selling, or what the result of so doing would have been, does not appear.
The burden of proving that a different line of conduct would have reduced damages, is upon the negligent party, appellee. Sedgwick on Damages, Vol. 1, Sec. 227; Shearman & Redfield on Negligence, Sec. 598.
If appellee had complied with its contract to promptly deliver the message, no hogs would have been bought on Tuesday, while, as instructed by the telegram, upon Wednesday the average shipment would have been purchased.
The average shipment appears to have been fifteen car loads per day.
The telegram was delivered so that but six car loads were purchased on Tuesday.
The damage to appellant is the difference in price between the six carloads bought through the negligence of appellee on Tuesday and the cost of such property on Wednesday.
That appellant could have done anything other than its agent did, suspend further purchases, to make the loss less, does not appear.
The judgment of the Circuit Court is reversed, and the cause remanded.
Rehearing
upon petition for rehearing.
Counsel for appellee say that in the statement of facts preceding the opinion of this court, there is an erroneous statement, viz.: “That it was the habit of Kent to make proportionate daily purchases.”
This statement is found in appellant's brief, of which counsel for appellee-in their brief said: * “The statement of the case in appellant’s brief, although on the whole correct, is wanting in accuracy in one particular and in fullness.” Counsel for appellee then go on to say that appellant’s brief is inaccurate in declaring that Kent immediately sent to appellant notice that its telegram had not been received until after six car loads of hogs had been bought.
Counsel for appellee failed to call attention to any other inaccuracy.
Quite naturally, this court assumed that what counsel for each side declared to be a fact, Was.
Turning to the record, we find that counsel for appellant asked Mr. Kent the following question:
“ Q. When you got an order at the beginning of the week, similar to the one contained in the telegram just introduced in evidence, for instance, to buy ninety cars during the week, how did you ma,ke those purchases, all in one day, or how ? ”
To which counsel for appellee, Mr. Holt, said: “ I object to that as immaterial and as not brought to the -notice of the telegraph company,"and therefore not binding upon it.”
The objection being overruled, Mr. Kent answered: “A. I used my judgment in purchasing, depending upon the supply and market price. Some days would be heavier and some days would be lighter; but the general custom was to use my judgment during the week in making the purchases.”
We think that the statement made by counsel for appellant and appellee, adopted by this court, and that made by the witness, are equally inconsequential. The important fact is, that owing to the negligence of appellee, Kent failed to receive an order not to buy, and consequently bought on August 1st at a higher price than he could have purchased on August 2d.
Appellee insists that Kent received the order not to buy at eight o’clock on Tuesday, and that his, Kent’s, knowledge of the negligence was, at once, appellant’s.
There is no testimony showing when the telegram not to buy was delivered to Kent, but it seems to be admitted that this was done at eight o’clock.
So too, counsel for appellee admitted that the statement of appellant as to the habit of Kent to make proportionate daily purchases, was correct, which admission they now retract.
Whatever may be the fact as to the time of the reception by Kent of this telegram, there is no evidence that Kent when he received the message knew that appellee had been negligent in its delivery.
The testimony is that the hogs were shipped upon a train leaving the Stock Yards at 12 o’clock. We know that six car loads of hogs must be delivered for shipment a considerable time before the train upon which they are carried actually departs, and that from the time of delivery they are “ in transit.” That Kent could, at the time the telegram was received by him, by stopping the carriage, or in any other way, have lessened the loss attendant upon the negligence of appellee, does not appear.
We have been referred to no authority holding, as contended by appellee, that the reception by Kent, a mere agent to purchase,, of the delayed telegram, was notice to appellant of the negligence of appellee; nor does it appear that if it were, appellant could have done anything to lessen the loss.
It is quite true that if appellant could, when it learned of the purchase, have at once sold the hogs in the Chicago market, the difference between the purchase and the net price it could then have obtained, is the measure of damages, but there is no evidence that the hogs were at that time in a place where they could have then been sold in the Chicago or any other market.
The petition for rehearing is denied.