133 Ark. 184 | Ark. | 1918
(.after stating the facts). Counsel for the defendant offered to confess judgment in the court below for the sum of $1.00 which was more than the price agreed to be paid for the transmission of the message. They contend that there should be no greater recovery in this case because the delayed telegram was merely a step in the negotiations for a contract. We think counsel are correct. The damages in cases of this character must not be uncertain or conjectural. Profits to be recovered must be such as would have accrued and grown out of the contract itself as the direct 'and immediate result of its fulfillment. Profits can not be recovered as damages if they result from an independent and collateral undertaking although entered into on the faith of the principal contract. Fulkerson v. Western Union Telegraph Co., 110 Ark. 144; James v. Western Union Telepraph Co., 86 Ark. 339, and Western Union Telegraph Co. v. Fellner, 58 Ark. 29.
In the present case the principal contract was the delivery of the message sent by Kidd to Caldwell announcing that a stock of general merchandise could be purchased at a bargain. An answer to the message would not have completed a contract for the purchase of the stock of goods. The owner would not have been bound to have sold the .goods nor- would Caldwell have been obligated to buy them. Either of them might have changed his mind before they entered into a binding contract in regard to the purchase or sale of the stock of goods. So their contemplated contract was collateral to the main undertaking although it might have been brought about by the prompt delivery of the telegram. The failure of the telegraph company to deliver the message promptly only prevented a contract that might or might not have been made. Damages for failure to deliver the telegram were’ too remote and uncertain to admit of a recovery where, if it had been delivered promptly, it only gave the person to whom sent an opportunity to make a contract which he might or might not have made. Beatty Lumber Co. v. W. U. Tel. Co., 44 S. E. (W. Va.) 309; Bennett v. W. U. Tel. Co., 106 N. W. (Iowa) 13; W. U. Tel. Co. v. Adams, etc., 47 So. (Miss.) 412; W. U. Tel. Co. v. Webb & Smith, 48 So. (Miss.) 408; Richmond Hosiery Mills v. W. U. Tel. Co., 51 S. E. (Ga.) 290, and W. U. Tel. Co. v Caumissar, 169 S. W. (Ky.) 1026.
In Jones on Telegraph and Telephone Companies, (2 ed.) section 535, page 694, it is said that where the sender loses the opportunity to conduct a profitable speculation, or to secure contingent profits, he can not recover for these, although the company may have been informed of the nature and character of the message.
It follows that the plaintiff was only entitled to recover nominal damages or the price of the message. For the error in instructing the jury as to the measure of damages to be recovered by the plaintiff, the judgment must be reversed. The defendant offered to confess judgment in the court below for the sum of $1.00 and judgment will be entered here against it in favor of the plaintiff for that amount.
It is so ordered.