81 Mo. App. 223 | Mo. Ct. App. | 1899
This is an action on contract to recover damages. The case may be sibated about this way: In De.cernber, 18 9 Y, the plaintiff, who resided about six miles from Pattonsburg, in this state, was the owner of a number of cattle which he intended to ship to Olander & Isaacson, his commission merchants at Kansas Oity, for sale on the market there; thait on the eighth of said month McCroskey, a cattle salesman of said commission merchants, who having been apprised of such intention delivered to defendant the following message:
“12-8, 189Y.
“To W. D. Reynolds, Pattonsburg, Mo.:
“Cattle awful mean. Hold yours if you can. Hogs two to five lower. T. G. McCroskey.
“Gtd. Olander & Isaacson.”
The defendant’s manager who received the message for transmission understood the abbreviation “Gtd.” to mean no more than that the payment of the usual tolls for the said message were guaranteed by the senders. The message was promptly sent to Pattonsburg but not delivered for the reason that the plaintiff was at his residence six miles away, and could not consequently be found within the free delivery limits of the terminal office; that on the next day, the ninth, the manager of the last named office sent a service message to the sending office notifying it that the said message had not been delivered. The latter was delivered to the senders at 2:30 p. m.'of the day it was sent. The senders paid no attention to this message. At about noon of said last named day the plaintiff came with his cattle to said town, which was a railway-station, and during the afternoon he read the Kansas City market report of the preceding day in which it was in substance stated that: “Cattle were too plenty for the demand on many kinds * * * Cattle that in most years would go for Christmas beeves were dull * * * The bottom has fallen ouit of the market this week * * * Yesterday’s market was 25 cts. uneven, and to-day’s 25 cts. uneven again,
Notwithstanding this information, the plaintiff, about 1 o’clock of that night, shipped his cattle to the Kansas City market where they were sold on the next day, the 10th. It appears from the evidence that the depression in the cattle market continued until the 13th, when there was some slight improvement in it. On the 14th, all kinds óf cattle sold better than the preceding week. “The demand was good and trade active at steady to 10 cts. advance, mostly steady.” The plaintiff’s claim isffhat he has been damaged to the amount of the difference which his cattle brought when sold on the Kansas City market on the tenth of December and that which they would have brought, had the same not been sold until the 14th of that month. There was a trial resulting in judgment for plaintiff and from which defendant has appealed. Quite a number of questions have been raised by the appeal and discussed in the briefs of counsel, but of these we shall only notice such as arise on the demurrer to the evidence.
The usual contract entered into between the sender of a telegraphic message and the telegraph company is to the effect that the latter agrees to transmit, with the aid of electricity, the intelligence contained in the message of the former to the place of destination and there write it out and deliver it to the addressee. Brashears v. Telegraph Co., 45 Mo. App. 443. But when the addressee does notresidenor is to befound within the free delivery limits of the terminal office the company is not required to deliver the message unless it has specially agreed with the sender so to do. ' It is bound to do no more than it is paid for, that is, transmit the message to the designated office and there make reasonable effort to deliver it within the free limit. Telegraph Co. v. Taylor, 3 Tex. Civ. App. 310; Telegraph Co. v. Trotter, 55 Ill. App. 659.
The defendant further objects that even if both the existence of the special agreement and the breach thereof be conceded," the plaintiff ought not to recover since it plainly appears from the evidence presented by the record that the failure to deliver the message was not the proximate cause of the loss or damage claimed by plaintiff. If this be so, it was the duty of the ¡trial court to have taken the caso from the jury by declaring, as a matter of law, that there could be no recovery by plaintiff. Buesehing v. Gas Co., 13 Mo.
The question now is, whether or not the negligence of the defendant, in respect to the delivery of the message, was the direct and proximate cause of the damages claimed by the plaintiff ? Undeniably the evidence discloses that nearly ten hours before the plaintiff shipped his cattle he saw the Kansas City" market report as to tike condition of the cattle market there on ¡the preceding day, the 8th. He was thereby informed that “the bottom had fallen out of the' cattle market” and of the extent of the decline in the value of the various kinds of cattle. This information was fuller and more in detail than that which the plaintiff’s commission merchants had sought to transmit to him by their telegraphic message. There was no fact or suggestion of fact contained in the said message that was not stated more in detail in the said market report. The very purpose of the publication of the market reports is to advise those interested in live stock as to the current sales and value thereof at the Kansas Oity market. If the plaintiff, before shipping his cattle, had met his commission merchants face to face they could have added nothing to the information which he had gleaned from the market report. The plaintiff when he shipped his cattle was in possession of every fact in respect to ¡the market value thereof that was stated in the undelivered message! He did not ship his cattle in ignorance of the state of the market. Can he now be heard to claim that ¡the negligence of the defendant in delivering him the said message has a causal connection with the damages he claims ? It may be fairly inferred if the message had been delivered to the plaintiff, according to the
The evidence does not, in our opinion, justify the conclusion that but for the negligence of the defendant the plaintiff would not have shipped his cattle when he did but would have waited until four days later before doing so, and that therefore it must needs follow that the negligence of the defendant was not the proximate cause of the plaintiff’s damages. The plaintiff in the statement of his cause of action alleges that the defendant negligently failed to deliver said message to him at Pattonsburg as it agreed to do, in consequence of which ho shipped two car loads of cattle to Kansas City on a bad market to his damage in the sum of $81.20. As already stated, the evidence shows that the plaintiff was fully apprised when he shipped his cattle of the depressed condition of the market. The commission merebants-ivho
It is objected that the only damages which the evidence tends to show the plaintiff sustained is the difference between what the cattle were worth on December the 10th and what they might have been worth on a subsequent day when the market should be better, which happened to be the 14th of said month. It is not controverted that plaintiff’s cattle sold on the tenth of December for just what they were worth. If the plaintiff had held them until the 14th of that month they might have been worth more. He might have, by so doing, realized a greater profit than he did. But who can tell whether he would have held them until the last named day, or, if so, that he would not have held them still longer and for a further advance? He might have held them until there was a further decline in prices, if such was the case. Profits which would have certainly been realized but for defendant’s fault are recoverable, but those which are speculative and contingent are not. Griffen v. Colver, 16 N. Y. 489.
This case is not analogous to that where a shipper is delayed in getting his property to market until there is a decline in the price there and whereby he is compelled to sell for a less price than he would have obtained had the carrier kept his contract. Wilson v. Railway, 66 Mo. App. 388. In such case the damages are certain and not speculative and contingent and are therefore properly allowed. But in a case like that disclosed in the evidence here, the profit — the basis of the claim of damage — is too speculative and contingent- to be the subject of a recovery. Many adjudged cases aptly illustrating the application of the principle of the rules just stated are cited in the defendant’s brief and may be referred to.
In our opinion the evidence did not warrant a verdict for plaintiff and accordingly we shall reverse the judgment.