Sherrerd v. Western Union Telegraph Co.

146 Wis. 197 | Wis. | 1911

SiebecKER, J.

There is no dispute but that the defendant is the agent of the plaintiff, the sender of the message. Saveland v. Green, 40 Wis. 431. Under the circumstances the purchase by the plaintiff’s brokers of the 1,000 shares of the specified stock, pursuant to the telegram delivered to plaintiff’s brokers, vested the title thereof in the plaintiff and made him the owner. No question of ratification of the purchase could arise as between the plaintiff and his brokers. The brokers acted within the authority of their agency for the plaintiff in purchasing the stock for him, and executed the authority which the defendant had undertaken to transmit for the plaintiff. The stock purchased under plaintiff’s authority, pursuant to the terms of the defendant’s telegram, therefore became plaintiff’s property without any further action on bis part, nor was be so circumstanced tbat be could disaffirm tbe transaction q,s between bimself and tbe seller. Tbis fixes tbe relation between tbe plaintiff and tbe defendant respecting tbe transaction and established tbe ground of liability of tbe defendant to plaintiff for damages proximately resulting from tbe defendant’s neglect in transmitting tbe message.

Tbe question tben is, What damages, if any, did tbe plaintiff suffer as tbe proximate result of tbe defendant’s neglect ? There is no dispute but tbat tbe actual loss to tbe plaintiff in tbe transaction was $1,500. It is averred tbat tbe trial court •correctly nonsuited tbe plaintiff because tbe evidence conclusively establishes tbat tbe plaintiff waived all claim for damages against tbe defendant by dealing with tbe 900 shares for bis personal profit. We do not so regard tbe evidence. A jury might well infer that tbe plaintiff took tbe steps be did for tbe purpose of minimizing tbe loss on tbe purchase induced through defendant’s fault and thus sought to reduce tbe damages as much as tbe circumstances of tbe situation would permit. Tbe facts do not permit of a conclusive inference tbat tbe plaintiff failed to act promptly and providently in disposing of tbe stock, or tbat be failed to act with ordinary prudence in directing bis brokers to resell it to prevent loss additional to that which be tben apprehended might result from tbe purchase of tbis excess of stock through defendant’s fault. In tbe light of such permissible inferences it was error to take the case from tbe jury upon defendant’s request for a nonsuit. Upon tbe evidence adduced tbe case should have been submitted for determination to tbe jury.

By the Court. — Tbe judgment is reversed, and tbe cause remanded for a new trial.