7 S.W.2d 520 | Tex. Comm'n App. | 1928
The following is the telegraphic correspondence between plaintiff in error and the J. Doug. Morgan Show, forming the basis for this suit by Thompson against the Western Union Telegraph Company for damages for its failure to deliver the show’s favorable reply to the last message quoted:
“El Paso, Tex., Nov. 3, 1924.
“To Manager J. Doug. Morgan Show, Commerce, Tex.:
“Bob Thompson agent at liberty formerly ahead Billy Bennett and other two cars shows also contractor Sun Brothers press agent A1 G. Barnes contractor and press for Jake Newman’s Gentry Show two seasons ask him about me thoroughly experienced routing posting contracting press promoting answer nineteen eleven Grandview avenue El Paso, Texas.
“R. W. Thompson.
“1911 Grandview ave.”
“Commerce, Tex., 4 912A
“R. W. Thompson, 1911 Grandview ave., El Paso, Tex.: Can place you at once wire lowest salary and how soon you can get here answer quick holding other offer.
“J. Doug. Morgan.”
“El Paso, Tex., Nov. 4, 1924.
“Manager J. Doug. Morgan Show, Commerce, Tex.: Will produce results you require for fifty and transportation after joining can leave here at six tonight if you will place ticket with Texas Pacific agent here answer.
“R. W. Thompson.
“1911 Grandview ave.”
The J. • Doug. Morgan Show delivered to the defendant in error money to cover the transportation called for in Thompson’s last message, but the same was never transmitted to Thompson, and he sued the telegraph company, alleging that by reason of its dereliction he lost the contract, and sought a recovery for a year’s salary at $50 per week; the contention of a year’s contract being based upon the following advertisement in the billboard in answer to which the telegram first quoted was sent:
“Wanted At Once: Good agent. No fancy salary, but good, sure salary. All year’s work. Hendrix, wire me, J. Doug. Morgan, Wolfe City, Texas, this week; Commerce, Texas, next.”
• The plaintiff recovered judgment in the trial court for $320, which judgment on appeal was reversed and rendered in his favor for the tolls paid, $1.95, and one week’s salary, $50, with interest. (Tex. Civ. App.) 299 S. W. 279.
The contention of plaintiff in error here is that he is entitled to recover for the loss of employment as under a contract for one year. We cannot sustain this contention. The plaintiff’s case was pleaded and he sought a recovery upon the theory that, had defendant in error delivered the money for transportation, it would have constituted a contract for one year, though he now insists a contract was really consummated. The case, however, was not submitted or tried upon that theory, but rather upon the theory that the contract would have been or was for a reasonable time; the only issue submitted to the jury being:
*521 “What would have been a reasonable time for the plaintiff to have worked had he entered the employment telegraphed about?”
The defendant timely objected to the submission of this issue upon the ground the same was not raised by the pleadings or the evidence, but the objections were overruled. The company assigned error in the Court of Civil Appeals to the refusal of the trial court to give its summary instruction and likewise to the submission of the special issue.
The contention of plaintiff in error that his contract was for ope year is predicated upon the contents of the advertisement in the bill board, and especially the words “all year’s work.” When this advertisement was offered in evidence, it was timely objected to by the defendant because the same was in no wise binding upon the defendant, and because the defendant had no notice thereof, and for other reasons not necessary to be noticed. This point was also made by proper assignment of error in the Court of Civil Appeals. We think the advertisement should have been excluded upon the objections made. It is of course elementary that the telegraph company would not be liable in damages for any loss which it could not anticipate, or of which it had no notice at the time its duty arose, or before it expired, to make delivery of the transportation involved. Of course, it is not required that the company have actual notice, but it is indispensable that it have such notice or actual notice of some fact or circumstance reasonably putting it upon inquiry as to such probable loss. Now, there is absolutely nothing in the telegraphic correspondence between the parties that would in any wise indicate to the defendant in error that there had been any previous communication or negotiation whatever between plaintiff in error and the Morgan Show, and there is nothing in the other testimony in the case from which such an inference of notice could be implied. See Western Union, etc., Co. v. True, 101 Tex. 236, 106 S. W. 315; Id., 105 Tex. 344, 148 S. W. 561, 41 L. R. A. (N. S.) 1188; Southwestern, etc., Co. v. Flood, 51 Tex. Civ. App. 340, 111 S. W. 1065; Western Union Tel. Co. v. Kibble, 53 Tex. Civ. App. 222, 115 S. W. 643, writ refused; Western Union Tel. Co. v. Farrington (Tex. Civ. App.) 131 S. W. 609; Western Union Tel. Co. v. Huffstutler (Tex. Civ. App.) 188 S. W. 455; Western Union Tel. Co. v. Haynes (Tex. Civ. App.) 243 S. W. 701.
So that the contention of plaintiff in error cannot be sustained, because the only evidence which could possibly support such a judgment was improperly admitted and cannot be considered.
The judgment of the Court of Civil Appeals reversing the judgment of the trial court was therefore correct in its result, and that judgment should be affirmed, irrespective of whether or not it would be correct with the advertisement properly before the court for consideration. We are not passing upon this latter question.
We therefore recommend that the judgment of the Court of Civil Appeals be affirmed.
