214 S.W. 987 | Tex. App. | 1919
The appellee brought this suit against the appellant telegraph company, to recover damages on account of negligence in changing the wording of a message transmitted for appellee by appellant, which resulted in damage to appellee.
Plaintiff resided in the state of Missouri and owned 160 acres of land in Crosby county. McLaughlin Johnston at Ralls, Tex., were handling the land as plaintiff's agents. On March 13, 1918, the agents sent plaintiff a message informing him that they were offered $50 per acre for the land, to which plaintiff replied that he wanted $55 per acre. These messages stated further details in reference to the terms of sale, but they are not *988 material here. The above reply was so transmitted as to read, when delivered to the agents, that plaintiff wanted $50 per acre for the land, and on receipt thereof the agents, in plaintiff's name, made a written contract providing for the sale of the land at $50 per acre, with other stipulations hereinafter stated, and plaintiff thereafter conveyed said land to such purchaser in accordance therewith. The land was worth $55 per acre, and plaintiff brought this suit to recover the sum of $800 damages sustained by reason of such facts.
The message was an unrepeated day letter, and the telegraph company pleaded the contract printed thereon, to the effect that in such case any liability for negligence in transmission should not exceed the price paid for its transmission, $1.35 in this instance; and the further provision that in no event should the company be liable for mistakes in transmission of any message "beyond the sum of fifty dollars, at which amount this telegram is hereby valued, unless a greater value is stated in writing hereon at the time the telegram is offered to the company for transmission, and any additional sum paid or agreed to be paid, based on such value, equal to one-tenth of one per cent. thereof." Appellants also pleaded and offered evidence to show that a copy of the form of such contract was on file at the time of the transmission of said message with the Interstate Commerce Commission. Appellant, by various assignments, contends that under such circumstances such contract limiting the liability is valid, and the plaintiff could not recover except under the provisions thereof. Our Supreme Court has ruled against this contention. W. U. Tel. Co. v. Bailey,
The sales contract made with the purchaser by the agents McLaughlin Johnston provided that the buyer should place $500 in the bank at Rails, to be applied in part payment for the land upon the consummation of the sale; but, in case of default on the part of the buyer, then said sum should be paid to the seller as his damages, and by the terms of said contract it was further agreed that —
"The seller, at the time of execution of this contract also through his agents above described, places in said bank a like sum to be held by said bank so that if the seller shall well and faithfully perform his part of said contract, then the said sum shall be returned to the agents above described, but if default shall be made in such performance by the said seller, then said sum shall be paid to the buyer as his damages hereunder."
Appellant bases two propositions on this provision of the contract:
(1) That on account of this provision the contract was invalid, the agents being unauthorized to make any such agreement; that plaintiff was therefore not bound by such contract, and, having voluntarily conveyed such land after the discovery of the mistake, cannot recover.
(2) That said provision made said contract an option, binding plaintiff, either to convey the land or lose the $500 put up in the bank at his election, and that he cannot recover more than $500.
If it had appeared that the agents were acting merely under the usual enlistment contract, the said provision would have rendered said contract unenforceable. Hagler v. Ferguson,
As to the second proposition, contracts very similar in their terms to this one have been construed as conferring a right of election on the part of the party similarly situated, either to proceed with the performance of the contract or to pay the damages stipulated and as precluding, in case of election to pursue the latter course, the enforcement of specific performance by the other party. Carter v. Smith,
We think the motion for continuance, on account of the absence of the defendant's attorney, presented good grounds for continuance. However, it appears that the facts were fully developed on pleading prepared and filed by such attorneys, and no harm appears to have resulted on account of the absence of such attorneys at the trial.
The Judgment will be reformed so as to allow a recovery in favor of the plaintiff for only the sum of $500, and as so reformed will be affirmed.