101 Mo. App. 500 | Mo. Ct. App. | 1903
In May, 1899, the plaintiff 'corporation held a deed of trust, in the nature of a chattel mort
The deed provided that Lutz should have no right to dispose of the cattle without the written permission of the holder of the secured notes, and that three days before the maturity of the notes the cattle should be shipped, consigned to the plaintiff at either St. Clair ■county, Illinois, Chicago or Kansas City, and be sold by the plaintiff on commission in the customary way, the proceeds .to be applied to the discharge of the secured indebtedness and a commission of fifty cents a head for making the sale. If any note was not paid when due or a violation by Lutz of any other condition of the deed of trust occurred, the entire indebtedness became payable instantly and the trustee was entitled to take possession of and sell the property.
After the cattle were transferred to Mississippi, Lutz made some sales and accounted to the plaintiff for the proceeds. He shipped several lots to Mobile, sold them there and turned the money over to C. B. Alexander, an agent of the plaintiff’s in the South. He also sold one carload in New Orleans and remitted a check for the price to the plaintiff, which gave him a corresponding credit on his indebtedness. After those transactions, which were conducted by Lutz in his own name, and also after all the notes had matured, he was permitted to continue in possession of the cattle. About 10th he sold and delivered three carloads to the
Plaintiff learned of the last shipment of cattle by Lutz and sent him the following telegraphic message regarding it; or rather delivered the message to the defendant to be sent:
“National Stock Yards, Ill., May 12, 1899. “John Lutz, Meridian, Miss.:
“You must not ship any more cattle covered by our mortgage to any but this market. Please instruct New Orleans commission firm to pay net proceeds to us of three cars that are there. Answer.
‘‘StbahorN-HuttoN-EvaNs Com. Co.”
As the message was delivered to Lutz at Meridian, the word “no” was substituted for “net” so that the sense of the dispatch was that the New Orleans firm should pay “no proceeds” of the cattle, instead of the “net proceeds,” to the plaintiff.
Whether Lutz collected the price of the cattle before or after receiving the telegram, he appropriated the money to his own use and excused himself for doing so on the strength of the message as it reached him. He was insolvent, afterwards became a bankrupt and
The foregoing are all the facts we need recite to mate this case intelligible as it is presented for our decision.
Two conclusions- of fact are deducible from the evidence: One is that the proceeds of the cattle sold to Christoffer & Inbau had been paid to Lutz before plaintiff sent the telegram in question, as Christoffer positively swore, the other that the money was paid after-wards and after said firm had notice of plaintiff’s lien, as Alexander’s testimony tended to prove. As stated, the declarations of law requested by the plaintiff, and for the refusal of which error is assigned, assumed that the first conclusion was the true one — that the proceeds were paid before the message was sent. Those declarations were to the effect that if the money for the cattle was paid to Lutz before plaintiff sent its telegram, but Lutz still had the money in his possession when the telegram was received and, in reliance on the telegram, failed to pay it over to plaintiff, there must be a judgment for plaintiff. Now it is apparent that in the circumstances predicated, the mistake in the telegram had nothing to do with the payment by Christoffer & Inbau to Lutz, and that fact is eliminated from the case for the purposes of this review.
The question that remains is: Did the telegram, as Lutz received it, justify him in appropriating the money to his own use instead of transmitting it to the plaintiff! It plainly did not. Lutz had made previous sales of cattle and, had turned the proceeds over to the plaintiff, and its course of business with him recognized his right to sell and account for the proceeds. Moreover, the obligation of the deed of trust entitled the plain
We accept plaintiff’s contention that a party to a contract is responsible for all the consequences of a breach which could have been in the contemplation of both parties when the contract was made, and that a telegraph company which receives a message for transmission agrees to transmit it accurately and is answerable for any damage produced by its delay or mistake, if the loss was one which was either expressly contracted against or was within the expectation of the sender and the telegraph company as likely to result if delay or mistake occurred. Hadley v. Baxendale, 9 Exch. 341; Abeles v. Telegraph Co., 37 Mo. App. 554; Nelson v. Telegraph Co., 72 Mo. App. 111. We also favor the doctrine that a telegram, which on its face relates to a business transaction, apprises the telegraph company of the importance of conveying it accurately and that dam.age is likely to ensue from a failure to do so. Lee v.
The judgment of the court below was that the plaintiff should recover the price paid to have the message sent, which was correct. It is therefore affirmed.