Also, because the court erred in charging: “I charge you that if the defendant, the telegraph company, undertook to transmit to this place a message which had been paid for at the other end of the line, and did fail to deliver the message to James within a reasonable time from the time it was received, the plaintiff is entitled to recover, for the failure to deliver, $100 as a penalty fixed upon that act by law.“I charge you that if you should believe that the defendant company did receive a message at this office for Mr. James, and then from their failure to deliver it within a reasonable length of time a loss actually accrued to him, he would be entitled to recover whatever amount you should find that loss to be.“If you should find that he (referring to plaintiff) failed to make the sale, by reason of the failure to deliver the message, and that he diligently attempted to sell the cotton afterwards and could not sell it on account of the character and condition of the market, but continued to make an effort to sell, and finally did sell, the measure of damages would be the difference between the price he would have received for the cotton if he had made the sale, and the price he actually got when he did sell.“ If you should find that the message was not delivered within a reasonable time under the attending circumstances, your verdict would be for the plaintiff1 upon both of these propositions.”Bigby, Reed & Berry and R. H. Powell, for plaintiff in error.W. D. Kiddoo, contra.
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