1 Colo. 230 | Colo. | 1871
The marked ability which has characterized the argument of this case makes it important to examine with great care the principles involved. The declaration contains three counts. It is averred that the plaintiff, on the 5th day of December, 1864, employed the defendant to transmit from Denver, in Colorado, and deliver to Ashton and Tait, in Nebraska City, in Nebraska, the following message :
“Denver, December 5,1864.
“ Ashton & Tait, Nebraska City:
“ Ship oil soon as possible, at very best rates you can.
“William Graham.”
' It is further alleged that, in consideration of the sum of $5.00 then paid, the defendant accepted and agreed to deliver the same, but that, by reason of the unskillfulness, negligence, and want of care of the servants and employees of the company, the message was not transmitted and delivered ; by means whereof the said Ashton and Tait did not ship the oil as requested, and the plaintiff was compelled to pay higher rates of freight on the same, amounting to the sum of $500, and also that the plaintiff lost great gains and profits by the delay thus caused in not shipping said oil, amounting to the sum of $1,500, and was otherwise put to great expense and incurred great loss and damage.
The defendants, for answer, plead the general issue, and four special pleas. In the special pleas it was alleged, that at the time of the delivery of the several telegraphic messages, in the several counts of the declaration mentioned, the plaintiff was notified and informed that in order to guard against mistakes in the transmission of messages over the
The first error assigned is the sustaining of the demurrer to the special pleas.
It is claimed by the plaintiff in error that Grraham, having subscribed to the conditions printed on the back of the paper on which the dispatch was written, is not only chargeable with notice of them, but that his right to recover is limited thereby.' It is further insisted that, not - having requested the- defendant to repeat the message, he thereby
This brings us to the question, whether the rule relied on by the defendants in the special pleas, and which is set up in defense of the plaintiff’s claim, is a just and reasonable one, and such as they have a right to prescribe, and by which the plaintiff was bound.
It has been remarked by an eminent lawyer, “ that when- rules and regulations are in derogation of common right, or are intended to restrict and limit liabilities to which the company would otherwise be subject, by reason of the duties imposed upon it by law, or the nature of its engagement, the validity of such rules and regulations is a question of law.” Accepting this as true, how stands the rule relied upon in the special plea ? The gist of the action is the failure to deliver the message. The complaint is not that the message was incorrectly sent or that it was inaccurately taken off the wires at Nebraska City. If this was the gravamen of the action, we might hold with the Kentucky and Massachusetts courts, that it was the duty of the plaintiff to insure its accuracy by having it repeated. But how could the failure to deliver the message be avoided by paying for having it repeated ? Can it be said that the operator at the other end of the line could insure the safe delivery of a message by repeating, when the negligence which
Until the plaintiff in error can show that the failure to
The introduction of this evidence was, doubtless,;ipermitted on the ground' that the plaintiff had a right to recover
But, granting that the declaration was sufficiently specific in all these points, was the plaintiff entitled to recover damages for the loss of profits) he might have made had the dispatch been delivered, and the oil been sent and received in Denver, and sold ? In the case of Staats v. Executors of Ten Eyck, 3 Caines, 116, Liviítg-stoit, J., says: “The safest general rule in all actions on contracts is to limit the recovery as much as possible to an indemnity for actual injury sustained without regard to the profits, which the plaintiff has failed to make, unless it shall clearly appear from the agreement that the acquisition of certain profits
The same rule is laid down in Blanchard v. Ely, 21 Wend. 342. In the case of Driggs v. Dwight, 17 Wend. 71, and Millers v. The Mariners' Church, 7 Greenl. 51, it was held that the plaintiffs were entitled to recover the
In the case of Squire et al. v. Western Union Telegraph Company, 98 Mass. 232, and which was an action in tort for failing to deliver a message, Bigelow, C. J., says: “These rules, in their application to damages in actions of this nature, are well settled and familiar. A party who has failed to fulfill a contract cannot be held liable for remote, contingent and uncertain consequences, or for speculative or possible results which may have ensued on his breach of duty, although they may be traceable to that cause. The reason is, that damages of such a nature are not the natural or necessary incidents of a contract, and cannot be deemed to have been within the contemplation of parties when they agreed together. A rule of damages, which should embrace within its scope all the consequences which might be shown to have resulted from a failure or omission to perform a stipulated duty or service, would be
While in this cause the court disallowed the recovery of profits, it held that the defendants, as a contracting party, were liable for the injury actually caused by their breach of duty, and commenting on the opinion delivered by himself in Elis v. American Telegraph Company, 13 Allen, 226, remarks: “ There is nothing in the nature of the business, which they undertake to carry on, that should exempt them from making compensation for any neglect or default on their part.” There is another important case bearing on this subject, and one worthy of great attention, as it seems to have been ably argued by counsel and gravely considered by the court. I refer to the case of Leonard v. The New York Telegraph Company, 41 N. Y. 565. The facts in that case were as follows : On the. 24th of September, 1856, Magill & Pickering, acting for plaintiffs, delivered to the Western Union Telegraph Company, at Chicago, a dispatch to be sent to one Shoals, at Oswego, as follows: “D. B. Shoals, Oswego. Send 5,000 sacks of salt immediately. Magill & Pickering.” When the message was delivered, it read, “ Send 5,000 casks of salt immediately.” The term
The cause was tried before a referee, who found “that the measure of damages to which the said plaintiffs are entitled is the difference in the value of salt at Oswego and Chicago with the cost of transportation added thereto, with interest from the time of the arrival of said salt at Chicago.” On commenting on this finding of the referee, Eable, C. J., says: “The measure of damages to be applied to cases as they arise has been a fruitful subject of discussion in courts. The difficulty is not so much in laying down rules as in applying them. The cardinal rule undoubtedly is, that one party shall recover all the damages which has been occasioned by the breach of contract by the other party. But this rule is modified in its application by two others. The damages must flow directly and naturally from the breach of contract, and they must be certain both in their nature and in respect to the cause from which they proceed. Under this latter rule, speculative, contingent and remote damages, which cannot be directly traced to the breach complained of, are excluded; under the former rule such damages are only allowed as may fairly be supposed to •have entered into the contemplation of the parties when they made the contract, as might naturally be expected to follow its violation. It is not required that the parties must have contemplated the actual damages which are to be
If the authorities from which I have quoted state the rule correctly, and I have no reason to doubt it, then the instruction given by the court, so far as the same relates to the plaintiff’s right to recover for profits which he might have made had the message been delivered and the oil sent, etc., is. erroneous, and the jury having been misled by it, the cause must be reversed. And as this cause must go back for trial, it is proper that we should add that tlie plaintiff is entitled to recover not only what he paid the com pany for transmitting the message, but also the increased price of freight he was required to pay, and also all expenses that the plaintiff incurred by reason of the failure of the defend
The cause is remanded for new trial in accordance with the principles announced in this opinion, and the parties have liberty to amend their pleadings.
Reversed.