Western Union Telegraph Co. v. Crawford , 110 Ala. 460 ( 1895 )

McOLELLAN, J.

It does not appear whether the only complaint set out in the transcript is the original or the amended complaint. The judgment entry shows that the defendant’s demurrers to the original complaint were sustained, and being refiled to the amended complaint, were overruled. If the complaint in the record is the original, we do not know what the amended complaint averred ; and not being informed whether it is the former or latter, we cannot review the action of the trial court in overruling the refiled demurrers. For like rea-ons we are unable to review the court’s action in sustaining the demurrer to plea No. 3 as originally drawn and as it stood upon the first amendment: the record does not show with any certainty what said plea was originally or as first amended.

The complaint in terms claims five hundred dollars damages, but it specifically avers that the loss to the plaintiff, because of defendant’s negligence, was twenty-seven-fourteenths (27-14) of a cent — or nearly two cents — per pound on a sale of seventy-two bales, being about 33,000 pounds, of cotton, but it goes on further to. show that the amount really intended to be claimed is the difference between the sum for which the cotton was sold at seven and an eighth cents per pound, and the sum it would have fetched at seven and eighty-one-hundredths (7.80) cents per pound, with interest &c. Assuming that plaintiff was entitled to recover at all, neither one of these bases furnish the proper measure of his damages under the evidence. The last stated is the nearest to the true measure, but that is inaccurate in that to have sold the cotton for 7.80c it would have been necessary to have kept it stored in Philadelphia and insured for a considerable time after the sale which was made, and the storage charges and insurance premiums would have had to bo deducted from the sum representing the difference between the amount realized from the sale at 7-J- and that which would have been realized from a later sale at 7.80c. So that upon no construction of the complaint and upon no hypothesis of evidence was the plaintiff entitled to recover “the sum sued for,” as the court declared he was on the facts hypothesized in the 3d charge given at liis instance. For the error in giving this instruction, the judgment will be reversed. «

Without referring in detail to the other points reserved, we deem it proper to observe for the purposes of another trial: 1. That the defendant’s liability does not at all depend on whether the message, which was incorrectly transmitted, was repeated or not.—Daughtery v. W. U. Tel. Co., 89 Ala. 191. 2. That if the jury should find from the evidence that the plaintiff had stored the cotton in question with factors in Philadelphia for the purpose of keeping it until he could sell for seven and eighty-one-hundredths cents, or more per pound, and had made arrangements and given instructions to that end, and further, that within a reasonable time — a month or six weeks say — after the cotton had been sold by the factors at 7$ cents, in consequence of defendant having failed to correctly transmit the factors’ telegram to the plaintiff, it could have been sold for 7 4-5 cents or more per pound, they should return a verdict for this difference with interest less the increased expenses to which plaintiff would have been put by holding the cotton meantime—Pepper v. W. U. Tel. Co., 10 Am. St. 699. And 3, that the plaintiff was under no duty or obligation to recoup the damages he had sustained through defendant’s negligence by buying other cotton when he was informed of the sale, and holding it for an advance in price—Western Union Telegraph Co. v. Stevens, 16 S. W. Rep. 1095.

The judgment of the circuit court is reversed. The cause will be remanded.

Reversed and remanded.