136 Ky. 843 | Ky. Ct. App. | 1909
Lead Opinion
Opinion op the Court by
— Reversing.
At 4:16 p. m. on September 11, 1905, R. D. Winsliip & Co., a firm of brokers in Chicago, sent tlie following telegram to tlie Louisville Cotton Oil Company:
This telegram was received at the Chicago, office of the cable company at 4:55 p. m., and sent by a messenger boy to the office of Winship & Co. The boy, finding the office closed, left the telegram under the door, where it was found by Winship & Co. the next morning, when they reached their office. The failure on the part of Winship & Co. to receive the telegram on the day it was sent resulted in the cancellation of the order, as the offer contained in the telegram of Winship & Co. was good only if accepted by the cotton oil company on September 11th, and notice of such acceptance delivered to Winship & Co. on that day. Thereupon the cotton oil company brought.this suit for damages against the cable company, charging that by its negligence in failing to deliver the telegram it lost the sale of the oil, and that on the following day the market price of such oil declined, and the highest price thereafter obtainable was 24 cents per gallon, at which the oil was sold, making a loss to the cotton oil company of $1,875. In its answer the cable company set up: (1) That the
Before coming to the merits of the case we will dispose of a question of practice raised by counsel for the cotton oil company who insists that we cannot consider the evidence in the case because all of it is not embraced in a properly certified bill of exceptions. On the trial of the case several witnesses testified orally in behalf of each of the parties, and there was read the depositions of R. D. Winship, Clarence Wimpenny, L. C. Doggett, W. E. Griffith, George J. Harding, and Charles A. Steams. In the official stenographer’s transcript of the evidence, attested by the stenographer and examined and approved by the trial judge,, is contained the evidence of all the witnesses who testified in person, and also a statement that the depositions of certain witnesses, naming them, were read in evidence to the jury. The depositions are not included in the stenographer’s transcript of the evidence, but are found in the record made by the clerk. In the bill of exceptions, examined and approved by the trial judge, there appears the following:
- “The plaintiff introduced as evidence in its behalf John G. Cafferty, Charles B. Finck, Charles A. Lud*848 wig, and read in evidence the depositions of R. D. Winship, Clarence Wimpenny, and U. C. Doggett, as shown by said transcript of evidence. Said depositions will follow immediately after this bill of exceptions in this transcript. * * * The defendant introduced L. R. James, P. J. Welsh, Ruby Meichels, and J. S. Wright, and read to the jury the depositions of W. E. Griffith, George J. Harding’, and Charles A. Stearns; all of which is fully set out in said transcript of evidence.”
Reading together the bill of exceptions, incorporated in the record made by the clerk, and the stenographer’s official transcript of the evidence, it is shown beyond question that the depositions of the persons named were read in evidence; but the point is made that, as the evidence of the witnesses who testified by deposition does not appear in the bill of exceptions or in the transcript of the evidence, it cannot be considered, and, this being so, w;e must presume that the omitted evidence supported the averments of the petition and was sufficient to sustain the. verdict. The sole purpose and office of a bill of exceptions is to bring before this court a record authenticated by the trial judge of things that transpired in the trial court that do not appear on the record book of the trial court. It is not necessary to put in the bill of exceptions the pleadings, orders of court, or any motion or paper that is mentioned in the orders of court as having been offered or filed as a part of the record, although it may not be copied on the record book, as the fact that it is there mentioned is sufficient evidence of its identification to make it a part of the record for this court when copied by the clerk, accompanied by his certificate.
Under the old system, and before the advent of the official stenographer, it- was the practice for attor
While upon this point we may say that, although it is right that depositions and other papers that are filed with the clerk should be copied by him in the record he makes for this court, as a part of the legitimate emoluments of his office, and that they should not be embodied in the transcript made by the official stenographer, as the statute (section 4639) contemplates that the stenographer shall only take notes of and make a transcript of the oral testimony offered or introduced, yet, if the depositions appear in the stenographer’s transcript, and it is signed by the judge, or if the bill of exceptions shows that the depositions of certain witnesses, naming them, were read as evidence, and they are copied by the clerk in the record made out by him, or if the stenographer’s transcript shows that the depositions of certain witnesses, nam
To the same effect is McGeever v. Kennedy, 42 S. W. 114, 19 Ky. Law Rep. 845. Neither the cases of L. & N. R. R. Co. v. Finley, 86 Ky. 297, 5 S W. 753, 9 Ky. Law Rep. 660, McAllister v. Connecticut Mutual Life Ins. Co., 78 Ky. 531, and C. & O. S. W. R. Co. v. Smith, 101 Ky. 107, 39 S. W. 832, 18 Ky. Law Rep. 1079, nor the line of cases in reference to instructions which are referred to in Gambrell v. Gambrell, 130 Ky. 714, 113 S. W. 885, are in conflict with the views we have expressed. An examination
_ Getting’ back to the merits of the case, the right of the cotton oil company to recover damages rests altogether on the proposition that if the message sent by it had been received in due time a valid contract would have been made between the parties; or, in other words, a contract that either of them might have brought an action in damages for a breach of. Unless such an action could be successfully maintained, the cotton oil company cannot recover more than nominal damages for the failure of the cable company to deliver the message. If no valid enforceable contract would have been made by the two telegrams, it necessarily follows that the cotton oil company cannot recover damages from the cable company that would only have resulted if the contract had been made.
The question then comes up: .Did the telegrams make a contract between the parties sending them? The cable company insists they did not, because the acceptance contained a qualifying clause; in other words, was not an unconditional acceptance of the offer. If this position is well taken, no more than nominal damages can be recovered, as the authorities in this state and elsewhere are uniform that to close a contract the proposition to sell or buy, as the case may be, must be accepted in the v.ery terms,in which the proposition is made. If any qualifications or conditions ’ are added to the acceptance, the offer is not accepted, and hence no contract is made. In Eliason v. Henshaw, 4 Wheat, 225, 4 L. Ed. 556, the law upon this point is thus stated: “It is an undeniable prin
This was approved in Provident Savings Society v. Elliott, 93 S. W. 659, 29 Ky. Law Rep. 552, and again in New York Life Ins. Co. v. Levy, 122 Ky. 457, 92 S. W. 325, 29 Ky. Law Rep. 6, 21, 5 L. R. A. (N. S.) 739, in which last mentioned ease the question-is elaborately discussed and many authorities are cited sustaining the rule announced.
It will be observed that the offer was to buy ten tanks of bleachable prime summer yellow oil at 27 cents, while the acceptance, although it agreed to the offer of 27 cents, for ten tank cars bleachable prime summer yellow oil, followed this by the words ‘ ‘ Memphis Exchange rules 'and arbitration,” and from a mere reading of the telegrams it would seem that these words did annex a condition, and that the message of the cotton oil company was only a qualified acceptance of the offer, and one that would require an answer accepting the added condition before the contract could be said to be closed; but there is evidence that these apparently qualifying words did not in fact impose any condition or add any terms that were not contemplated and agreed to by both of the parties at the time the telegrams were sent and received. The president of the cotton oil company, as well as Winship, testifies that the message of the cot
If it is true that it was mutually understood by the parties and within their contemplation at the time the telegrams were sent that the Memphis-Exchange rules and arbitration should apply to the contract, or there was in existence at the time a well known and established custom entering into contracts like this that the Memphis Exchange rules and arbitration should apply, or, to put it in another way, if when Winship & Co. sent the télegram they understood and agreed that the Memphis Exchange rules and arbitration should apply to it, the fact that these words were used in the message of acceptance would not modify or qualify the offer, but on the contrary would make a complete contract between the parties. What is mutually understood and agreed to by the parties will enter into and become a part of a contract, as will a well established custom of the trade enter into and become a part of it when the custom is known and understood by the parties and the contract is made with reference-to- it.
And so, on another -trial, it will be competent for the cotton oil company to introduce evidence to show that its message was an acceptance of the offer, and the custom of the trade in reference to such contracts, and likewise competent for the cable company to introduce evidence to show that it was not an acceptance and that there was no such custom. If there is conflict in the evidence on these points, the court should, in addition to other instructions, tell the jury,
As to whether or not a telegraph company is liable in more than nominal damages for its failure to transmit and deliver in reasonable time a cipher message, there is some conflict in the authorities, and the question has never been directly passed on by this court, although it was mentioned in Western Union Telegraph Co. v. Eubanks, 100 Ky. 591, 38 S. W. 1068, 18 Ky. Law Rep. 995, 36 L. R. A. 711, 66 Am. St. Rep. 361.
The weight of the adjudged cases undoubtedly is that where the message is in cipher and unintelligible, except to the sender and addressee, and the company has no information or 'notice except that gathered from the telegram itself as to the importance of its delivery, the injured party cannot recover more than nominal damages. Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883; Thompson on Negligence, section 2472; Jones on Telegraph & Telephone Companies, sections 531-538; Am. & Eng. Ency. of Law, vol. 27, p. 1062; Candee v. Western Union Telegraph Co., 34 Wis. 471, 17 Am. Rep. 452.
But, on the other hand, there are a few courts that hold that the company is liable for all special damages the complaining party suffered by its negligence, although the message was wholly in cipher or couched in language that did not convey its real meaning or importance. Daughtery v. American Union Tele
Although a telegraph company is a public servant and owes to the public duties that it cannot contract against or avoid responsibility for, nevertheless it should not be held liable for any loss or damage that it could not reasonably know or contemplate, when it received the message, would follow from its failure to transmit or deliver it with reasonable diligence; or in other words, for loss that it had no’notice or information of when it entered into the contract of carriage. The whole doctrine of liability for breach of contract is based upon the proposition that, when parties enter into a valid contract, it is within the contemplation of each of them that a failure to perform it will result in some 'loss or damage to the party not in default, and that this loss or damage the delinquent party must make good if it was a reasonable and natural conseqiience of his breach. But special or extraordinary damages cannot be recovered unless it can be shown that they were within the contemplation of the parties when the contract was made, or that the defaulting party had notice that such damages would result from his breach, and, in the absence, of notice, it cannot be said that it was contemplated by the parties that this- class of damages would result from a failure to perform the contract according to its terms.
This rule in reference to special damages has been applied by us in actions against common carriers of goods, and we have held that whenever a person damaged by unreasonable delay in the transportation of freight seeks to recover more than nominal damages, or to recover special or extraordinary damages,
This rule we think it fair and just to apply to telegraph companies. If the message on its face, although partly in cipher or unintelligible, would furnish to a person of ordinary prudence notice that it was important and its prompt delivery essential, or if the company or its operator receiving it has notice of its importance, then special damages may be recovered for the failure to promptly transmit or deliver it.
On the other hand, if the message is of such a character that it does not convey any information of its importance or the necessity for its.prompt transmission or delivery, and if the company or its operator receiving it has no information or notice of its importance, only nominal damages, or, in other words, the price paid for sending the message, can be recovered if the company is negligent in its transmission or delivery. Whether special damages can be recovered is not dependent upon the proposition that the message on its face is intelligible. If the company or the operator receiving it has notice from the sender obtained directly with reference to the particular message, or received in the course of business dealings with him, or information from other sources, of the importance of the message, it will be liable for the special damages that reasonably and naturally followed as a consequence of its negligence, although the message may be wholly unintelligible to the operator, and no person excepting the sender and addressee
Under this view of the law, the court on another trial may permit the cotton oil company to introduce evidence showing its course of dealings with the cable company, the number and kinds of messages sent' by and received from it, and any other facts or circumstances tending to show that the company or its operator receiving tlie message had notice at the time of its importance and. the jury should be instructed in substance, that if they believe from the evidence that the cable company knew, or in the exercise of reasonable prudence should have known, from the message or other facts within its knowledge, that the message related to a commercial transaction of importance, then it had such notice as would make it liable in special damages if it negligently failed to deliver in a reasonable time the message.
Wherefore the judgment is reversed, with directions for a new trial in conformity with this opinion.
Dissenting Opinion
I dissent from that part of the opinion which establishes the doctrine that it is necessary for the sender of a message to expose his trade or
Rehearing
Response to Petition eor Re-Hearing by
In answer to an argument presented for the first time in the petition for rehearing, we add to the opinion this:
If it be alleged and proven that a message, if sent or delivered with dne diligence, would result in a sale of property or in securing property or employment or other thing of value, and, on account of the failure or delay in sending or delivery of the telegram, the plaintiff has sustained loss or damage which he would not otherwise have suffered, he may recover from the telegraph company such damages as were the natural and proximate result of its negligence in failing to send or deliver the message with reasonable diligence. Or, to put it in another way, if an offer, direction, or proposition in a telegram is to do or not do a certain thing, and it be alleged and proven that on account of the negligence of the company the telegram was not sent or delivered with reasonable diligence, the company will be liable for the loss or damage sustained that resulted from its negligence. In such a case evidence that the sendee would have acted on the offer, direction, or proposition contained -in the telegram if it had been received, would, be competent to show in connection with other testimony the amount of loss or damage.
But that is not this case. Here the action was based entirely upon the proposition that the telegram sent by the Cotton Oil Company was an acceptance of an
Petition for rehearing overruled.