No. 964. | Tex. | Jan 21, 1901
The Court of Civil Appeals for the Fifth District submits the following statement and questions:
"The appellee, J.T. Turner, was a cotton buyer doing business at Jefferson, Texas. On February 7, 1899, he was at Linden, Texas, and while there Nelson and Rogers, who owned seventy bales of cotton located in a warehouse at Jefferson, offered to sell him their cotton at $5.75 per hundred pounds. Turner was to return to Jefferson that day, and agreed with them that when he got there and saw the market quotations he would, if the market justified him in doing so, take the cotton *308 at the price named. He was to reply by telegram and the trade was not to be considered closed until a message accepting said proposition was received by Nelson. When Turner reached Jefferson, he concluded to take the cotton and went to the office of appellant and delivered to appellant's agent a message directed to Nelson, at Linden, accepting the proposition, which message reads as follows: `To C.H. Nelson, Linden, Texas: Accept offer five three quarters. Send tickets. Accept Rogers. (Signed) J.T. Turner.' Appellant did not operate a line to Linden, but did own and operate a line to Atlanta and Naples and there were telephone lines from both those points to Linden. The appellant had no interest in or connection with the telephone lines, and when messages were delivered to it directed to points on those lines, it accepted same and delivered such messages to the telephone company to be transmitted by it to their ultimate destination and there delivered to the addressees. The line from Atlanta to Linden was not in good working order, but the line from Naples to Linden was in good condition. Turner notified the agent of the appellant of said facts and asked that the message be sent by Naples. The rules of the company required the agent to send such messages by the nearest line that was open, which, in this instance, was by Atlanta, if that line was in working order. The agent at Jefferson inquired of the agent at Atlanta whether the `phone line to Linden was all right. The Atlanta agent sent the inquiry to the `phone agent and received a response in the affirmative. Thereupon the Jefferson agent routed the message by way of Atlanta and promptly transmitted it to that place and the agent there promptly delivered it to the `phone agent, who undertook to forward it to Linden, but could not do so on account of the condition of the wire. The `phone agent kept the message for two days and then returned it to the telegraph company, whose agents at once notified Turner of its nondelivery. Before Turner could communicate with Nelson, the latter had sold his cotton and Turner lost the profits on his trade, amounting to $87.50, the cotton being worth that sum more than the amount he agreed to pay for it. Had the message been sent by Naples, as directed by Turner, it would have been received by Nelson on the day it was sent and the trade would have been consummated. By the custom then prevailing in the cotton business, an offer to sell at a stated price was good only for the day on which the offer was made. Turner paid the agent at Jefferson the charges both of the telegraph company and the telephone company, but did not notify the agent of the telegraph company that the delivery of the message to Nelson was necessary to close the contract. There was indorsed on the message an agreement by the sender making the company the agent of the sender, without liability, to forward the message over connecting lines.
"This suit was brought by Turner against the telegraph company to recover the damages sustained by him on account of the nondelivery of said message, which damages were alleged to be the loss of the profit he *309 would have made on his trade with Nelson for the purchase of the cotton.
"Question 1. Did Turner have a right to direct the message to be sent by way of Naples, and was it negligence for the company to undertake to send it by way of Atlanta?
"Question 2. Was it necessary, before Turner could recover the damages claimed by him, for the company to have notice of the fact that the delivery of the message to Nelson was necessary to close the contract for the sale of the cotton? In other words, can it be held, in the absence of notice to the company of said fact, that the company had in contemplation when it received and undertook to transmit the message, that the damages sued for would result from a failure to deliver the message to Nelson, or did the company have the right to suppose that the filing of the telegram of acceptance closed the trade and that no damage would result from the failure to deliver? See Telegraph Co. v. Davis, 35 S.W. Rep., 189."
1. Under the facts stated, Turner, the sender of the message, had the right to direct that it be sent by way of Naples; and the attempt to send it by Atlanta was not a discharge of the duty which the company owed him. The company was engaged in the operation of a line and the transmission of messages to Naples, and was charged by law with the duty of sending messages to that point for all persons, upon payment of the proper charges. This obligation gave to Turner the right to demand that his message be sent to that point and delivered to the agents of the company operating the telephone line from there to Linden. The defendant also held itself out as willing to undertake the duty, in addition to that just defined, of forwarding messages over connecting lines, acting as the agent of the sender. In employing it to perform the latter service, the sender undoubtedly had the right to instruct it, as any other agent, to send the message over a particular connecting line with which it was doing business.
The rule of the company directing its agents to send messages by the nearest open connecting line could not apply in this case, even if in any event it could operate so as to defeat the right of the sender just stated, for the reason that the nearest line was not open on this occasion.
We understand the latter part of the question, in reference to negligence, to put the question whether or not the attempt to send the message by Atlanta was negligence in that it was a violation of the right of the sender before mentioned to direct it to be sent by Naples, and, thus construed, it is answered by what we have said. If it should be otherwise treated, it would present a question of fact which this court can not answer.
2. The second question is answered in the negative. The language of the message was sufficient to suggest that it was intended as the acceptance of an offer involving a business transaction and to make it the duty of the company, if it desired further information, to request it. Telegraph Co. v. Adams,