Jarboe v. Western Union Telegraph Co. , 63 Mo. App. 226 ( 1895 )

Gill, J.

In February, 1893, plaintiffs were engaged in the manufacture of flour at Carrollton, Missouri. In answer to a request from parties at Augusta, Georgia, plaintiffs attempted to communicate the price of a low grade of flour by the car load and gave to defendant’s agent a message, stating the price at $1.75 per barrel. Through an error, or mistake, the message was transmitted and delivered to the addressees,' stating the price of the flour to be $1.25 per barrel. • By reason thereof plaintiffs claim they were damaged in the sum of $91, in the sale of the flour, and for which, with sixty-five cents, the price paid for transmission of the telegram, they prayed judgment.

The defendant’s answer contained, first, a general denial; and, second, the defense that the company was not liable by reason of the usual clause exempting the company from damages for mistakes or errors in transmitting telegrams, unless the dispatch was repeated. To this second defense, plaintiffs interposed a demurrer on the ground that the facts therein stated constituted no defense to the action. The trial court overruled the demurrer; and on failure of plaintiff to plead further, entered judgment for defendant and plaintiffs have appealed.

The trial judge was clearly right in overruling the plaintiff’s demurrer to the second clause of the answer. The matters therein set out constituted a good defense to the action, in so far as the damages to'the sale of the flour was concerned. We settled that point in the late case of Cowen Lumber Co. v. Western Union Tel. Co., 58 Mo. App. 257.

But the lower court should have heard the case on the issues made by the general denial, and if it was a fact that plaintiffs paid sixty-five cents for the transmission of the message (and it was not transmitted as written and furnished) then plaintiffs were entitled to recover that amount. Cowen Lumber Co. v. Telegraph Co., supra; Abeles v. Tel. Co., 37 Mo. App. 554; sec. 2926, R. S. 1889.

Judgment reversed and cause remanded.

All concur.