Postal Telegraph-Cable Co. v. Craig ( 1913 )

Cook, J.,

delivered the opinion of the court.

W. C. Craig & Company were engag’ed in the cotton business at Vicksburg, Mississippi, with correspondents in New York City. The telegraph company had an office in Vicksburg and one in New York, and was eng’ag'ed in the business of transmitting messages for hire from Vicksburg to New York, and throughout the entire country. Craig & Company ran an open account with the telegraph company. The course of business between the parties to this suit, in this regard, as shown by the record, was that Craig ■& Company would send a message to be transmitted, and the telegraph company would receive and transmit the same and then charge Craig & Company with the regular toll for each message sent, or received collect by Craig & Company. On March 22,1911, the telegraph company filed its declaration against Craig & Company based on an itemized open account for the months of September, October, November, and December, 1910, and January and February, 1911, aggregating seven hundred and twenty-eight dollars and' forty-five cents. After the declaration there was much pleading, demurring, and making of motions, which we deem it unnecessary to consider. Suffice it to say that the cause went to trial upon the declaration, the general issue, and notice and a special plea of defendant,' which notice and plea, reduced to reasonable dimensions, amounts to about this: The plaintiff herein will take notice: That on the trial of this case .the defendants will offer evidence and undertake to prove as an affirmative defense the following facts. That the defendants are cotton buyers in Vicksburg, Mississippi, and were so engaged during the month, of October, 1910, and on the 3d day of October, 1910, they sent a telegram direct, and without the direct or indirect assistance of any agent, attorney or intermediary in this state in said transaction, to Craig & Jenks, cotton buyers and brokers in the city of New York, which was an order to buy five hundred bales of cotton, December delivery. The message was delivered to a messenger boy of plaintiff’s at ten thirty-five a. m. with specific instructions as to its import and importance, and with the request to hurry the message in transmission. The message was not delivered in New York until twelve m., which was an unusual and unnecessary delay an^l resulted in a direct loss to these defendants of four hundred and ninety dollars' by reason of the advance in the market in the meantime. Eepeated offers to pay the difference to plaintiff between this sum and the sum herein sued for have been made, and the plaintiff has refused to accept the same; and the defendant now renews the offer to pay said difference, which amounts to two hundred and thirty-eight dollars and forty-five cents, and herewith tenders same and pays it over to the clerk of this court with authority to the clerk to pay the same to plaintiff whenever it will dismiss this case and receipt them in full. The said four hundred and ninety dollars demanded of plaintiff is for damages for breach of contract as above set out, and is by way of a set-off sued for herein, and an itemized statement of same is herewith filed, marked “Exhibit A,” and made a'part of this notice. A jury was waived, and the cause was submitted to the court on the law and the facts, and the court entered judgment allowing plaintiff balance due, after deducting the set-off filed by defendant. There was no conflict in the evidence, as to the measure of defendant’s damage — the only conflict being over the failure of plaintiff to transmit the message within a reasonable time— and the court solved this conflict in favor of defendant. When the court reached the conclusion that the telegraph company breached its contract to transmit the message within a reasonable time, it necessarily followed that the offset should have been allowed, if it was pleadable under the statute.

Appellant insists that under our system the matter pleaded was in effect a cross action founded upon a tort, the negligence of the telegraph company to perform its duty as common carrier; while the demand of plaintiff is ex contractu, an action upon an open account for tolls due it for transmitting messages.

It will be observed that the damages arise out of the alleged breach of contract, and this, taken together with the course of dealing between the parties, shows that the toll for this message was, or could, under the course of business, have been, charged upon the open account sued on by plaintiff. The telegraph company was engaged in the sole business of transmitting messages for hire, and in the course of its business it entered into an arrangement with Craig & Company whereby it sent messages without first demanding the payment of its tolls; and the charge for sending this message was, or should have been, entered upon the account sued on.

In other words, the counterclaim grows out of the very business and dealings which forms the basis for plaintiff’s cause of action. Was this within the terms of. our statute, which Judge Campbell indicates, in Wilkinson v. Searles, 70 Miss. 392, 13 So. 470, enlarges the rischt of set-off? It matters but little by what name the defensive matter may be dubbed — and it seems clear to us that a demand growing out of mutual dealings, as was the case here, could, at least, be used in recoupment.

This being true, we do not feel authorized to disturb the judgment of the court upon the “technical form of ap-pellee’s plea.” In a case strikingly like this case, the court said: “The defense relied on by the appellee could have been properly interposed by way of recoupment, and, as no judgment over was taken against the appellant, no harm was done.” Machine Co. v. Thomas, 87 Miss. 391, 39 So. 810. No judgment ever was asked or obtained, in the present case, and “no harm was done,” ’ on account of the form of the pleading.

It is claimed that the message sent in this case was in cipher and appellant was not advised of the importance of promptly transmitting same. Craig & Company say they delivered it to a messenger of appellant and told him that it was an order and important.

Appellant claims that the messenger was the agent of Craig & Company, and not their agent, and notice to the messenger of the importance of the message was not notice to the telegraph company. In support of this contention, appellant relies upon the printed “terms and conditions” upon the back of the blank used by Craig & Company. The clause relied on reads: “No responsi-' bility regarding messages attaches to this company until same are presented and accepted at one of its transmitting offices; and if a message is sent to such office by one of the company’s messengers, he acts for that purpose as the agent of the sender.”

This regulation, or condition, analyzed, means that the company will not be responsible for messages delivered to one of its messengers, until the messenger delivers it to its office; and it notifies senders that, if they choose to send the message by their messenger, they take the risk of his failure to deliver same. The messenger is made the agent of sender to get the message to the company. This condition was written by the company and cannot be given a meaning broader than its language imports. There was no failure to deliver; the message was delivered and accepted at the office of the company. The messenger was the agent of the company, except as provided by the printed condition. Conceding that the printed matter binds persons using the blanks, we can find nothing in the condition, relied on by appellant, to support its contention.

We have gone over all the testimony in the record, and we cannot say that the circuit judge was wrong in his conclusions. The record contains abundant evidence which authorized the judge to reject the reasons urged by appellant as an excuse for its failure to promptly transmit and deliver the message.

Affirmed.