Western Union Telegraph Co. v. Adams Machine Co.

47 So. 412 | Miss. | 1908

Calhoon, J\,

delivered the opinion of the court.

The declaration of appellee avers that it lost $450, which would have been profits, if it had manufactured certain machinery; that its salesman, Barnes, contracted with a firm in Marthasville, La., to sell them the machinery “provided the plaintiff would guarantee shipment of said machinery from Corinth, Miss., to Marthasville, within thirty days.” Accordingly, the declaration avers, and the proof shows, that the agent delivered for transmission at the office of appellant in Marthasville a telegram in the following words: “Will you guarantee shipment 50 H. P. boiler 40 H. P. engine No. 4 mill 78 S. G. Edger in thirty days” — properly signed. This telegram was never delivered, and, as before said, the claim is specifically for $450, the profit which would have been made if the telegram had been received and the contract closed.

It is plain that the making of the contract was not completed, and it is. plain, also, that the evidence to the effect that the machinery company would have accepted the proposition was not competent. It is also plain in this case that the machine company had only lost an opportunity of making a proposed contract. Profits cannot be recovered, according to the uniform trend of the authorities, unless they are such as grew out of a contract perfected. The cases of Alexander v. Telegraph Company, 66 Miss., 161, 5 South., 397, 3 L. R. A., 71, 14 Am. St. Rep., 556, and Id., 67 Miss., 386, 7 South., 280, are not like this case, because there Alexander’s agent had an offer to sell him land at a specific amount, 'and asked Alexander, if he wanted the land at that price, to inform him at the day fixed of his acceptance. Alexander answered: “Get option until Monday if you can, if not, close trade and fix papers.” So we have in that case an obligation which would have bound Alexander if the trade had been closed according to instructions. The trade was not so closed because of the nondelivery of the telegram, and the specific damages were proved to be the difference in values of the property. The court held there that the damages claimed did not fall within the general line of decisions as being too speculative, but were actual damages resulting “directly and naturally from the breach of duty and contract upon which the complaint is founded,” and that they might be established “with as near absolute certainty as any class of damages.”

We are unable to distinguish the case in hand from the case of Johnson v. Telegraph Co., 79 Miss., 58, 29 South., 787, 89 Am. St. Rep., 584, in which case the telegram was: “We have a million yards, pay both ways; work Georgiana, Alabama. Do you want any ? Hancock will be in Georgiana after Thursday. Speak quick.” The telegram was never delivered, and the declaration averred that Johnson wanted work, and would have gone to Georgiana and made money, which he lost because of the nondelivery; and this court in that case said: “We think the damages here are too remote to be recovered. If the telegram had been received, it only gave the appellant an opportunity of making a contract for railroad work, which he might or might ¡not have made.” This decision is exactly in line with all the well-considered authorities which we have been referred to. We now cite: Telegraph Co. v. Hall, 124 U. S., 444, 8 Sup. Ct., 577, 31 L. Ed., 479 ; Richmond v. Telegraph Co., 123 Ga., 216, 51 S. E., 290; Walser v. Telegraph Co., 114 N. C., 440, 19 S. E., 366, and cases it cites; Clay v. Telegraph Co., 81 Ga., 285, 6 S. E., 813, 12 Am. St. Rep., 316; Smith v. Telegraph Co., 83 Ky., 104, 4 Am. St Rep., 126; Kenyon v. Telegraph Co., 100 Cal., 454, 35 Pac., 75; 27 Am. & Eng. Ency. of Law (2d ed.), 1061.

Reversed and remanded.