32 S.W. 707 | Tex. App. | 1895
In the court below appellees recovered a judgment against appellant for $500, the correctness of which depends, in the main, upon the liability of appellant for consequential damages for a failure to transmit and deliver, as it agreed to do, the following telegram:
Austin, Nov. 13, 1893.
To N.J. Nagle, care W.J. Crow,
Henderson, Texas.
Kammerer renews orders Blunt Confess Cowardice Alack Bluffing each Conclave Album Concise Alarming.
(Signed) JOS. B. WINN.
If this message had been received by N.J. Nagle, who was a member of the firm of Nagle Winn and understood the cipher in which it was, in part, written, he would have understood it (as it was intended) to mean, that E.P. Kammerer, a cotton buyer in Galveston, Texas, had submitted an offer, as, in fact, he had done, to purchase five hundred bales of cotton, of designated grades and at stated prices; and would have immediately accepted said offer, for the benefit of the firm, and bought and shipped the cotton required to fill it, at a price so much less than that offered by Kammerer as would have resulted in a net profit to appellees of $500.
Conceding the correctness of the rule quoted in Daniel v. Telegraph Co.,
And in Telegraph Co. v. Edsall,
In the case at bar appellant's agents in charge of its office in Austin knew that appellees were engaged in the business of buying and selling lot cotton f.o.b. at various points in the State, with headquarters at Austin. Three times per day appellant's agents delivered to appellees the market reports; and they had previously been told that it was important that all messages from and to appellees should be sent and delivered with dispatch; and when the message in question was carried to the office, Winn, the sender, marked it "rush," and told Parker, the *542 manager of appellant's Austin office, to whom he delivered it, "to please rush it, as it was very important and to get an answer by wire as soon as possible." Parker, testifying as a witness for appellant, said that it did not appear by the check on the message that he received it, personally, although he may have done so and handed it to the receiving clerk for his check; that he did not then know the meaning of the message, but would suppose it referred to the cotton business. He also stated that previous to November 13, 1893, appellees had sent numerous messages to and received numerous messages from Kammerer.
These facts, in connection with the words, "Kammerer renews orders," in the beginning of the message, takes this case out of the general rule as to cipher telegrams, and brings it within the doctrine announced in the Edsall and Adams cases cited and quoted from above. In support of the latter doctrine see Telegraph Co. v. Sheffield,
Appellant transmitted the message to its relay office in Galveston, where it was received and forwarded by one Phillips, who has since then been discharged by appellant on account of drunkenness. It was not forwarded to Henderson, Texas, but was sent to Sanderson, Texas, and consequently was never delivered to the addressee. These facts warrant the conclusion that appellant was guilty of negligence; and, therefore, negligence being proved against it, it is not protected against liability by the stipulation requiring messages to be repeated. It could not contract so as to relieve itself from liability for damages caused by its own negligence. Telegraph Co. v. Linn,
Under the facts alleged and proved by appellees, we do not think the damages recovered are any more remote and uncertain than those allowed in Telegraph Co. v. Sheffield,
No reversible error has been pointed out, and we affirm the judgment of the County Court.
Affirmed.