Mills v. Western Union Telegraph Co. , 123 Ga. 216 ( 1905 )

Lumpkin, J.

(After stating the facts.) The sole question in this case is, what amount of damages was the plaintiff entitled to recover ? The transaction between the plaintiff and Holland & Webb may be considered in two possible views: First, that the plaintiff had a binding contract with that firm; and second, that it did not. If Holland & Webb made a proposition by telegram to sell yarn and deliver it at a certain time, and by mistake in transmission a different time was stated in the telegram as delivered, and, acting on it as thus delivered, the plaintiff accepted the proposition, according to the ruling in Brooke v. Western Union Telegraph Co., 119 Ga. 694 (citing Western Union Tel. Co. v. Flint River Lumber Co., 114 Ga. 576), this constituted a valid, binding contract between the plaintiff and Holland & Webb, and the plaintiff would be entitled to recover nothing from the telegraph company on account of the error. In that case it was held that “ in the transmission of a telegraphic message the telegraph company is the agent of the sender, to whom, and not to the company, the recipient must look for damages arising out of error in the transmission.” Whether this ruling is in accord with the decisions in other jurisdictions or not, it is the law of this State while it stands unreversed. The demurrer of the defendant, however, was overruled, and no exception was taken thereto. Hence whether this judgment was correct or erroneous, until excepted to and reversed it was binding on the parties. Kelly v. Strouse, 116 Ga. 874 (7). It was an adjudication that the plaintiff was entitled to recover something of the defendant, if it sustained the allegations of its declaration by proof. An examination of the grounds of the demurrer, however, will show that, with the exception of the fifth ground, they all went to the general question of whether the plaintiff was entitled to recover anything of the defendant or not. The fourth ground does say, iu general terms, that there are not facts alleged sufficient to entitle plaintiff to recover the damages sued for, or to maintain this action. But this is really a general der murrer. The fifth ground attacked certain element's of damage claimed, as being too remote to sustain a recovery, and the judge so held. The result of the ruling on the demurrer therefore was to determine that, on the face of the declaration, the plaintiff was entitled to recover something. But it adjudicated nothing as to the amount of such recovery, or the measure of damages. If,' therefore, we treat the telegram as constituting a valid contract between the plaintiff and Holland & Webb, the question remaining for adjudication may be thus stated in the form of a paradox: If a plaintiff in law is entitled to recover nothing, but the defendant, by reason of failing to except to a ruling on a demurrer, is estopped from saying so, what is the legal measure of recovery ? The judge of the superior court, who made the ruling on the demurrer, and who also heard the case without a jury, both upon the law and facts, decided that nominal damages furnished the most appropriate answer to the question above propounded ; and we can not say that he erred.

So far as the plaintiff seeks to rely upon estoppel by judgment, it may perhaps have cause for regret that the defendant did not go further and specifically attack the measure of damages set up, and thus entangle itself in the web of. estoppel, both as to right of action and amount of recovery. Such appears to have been the case in Georgia Northern Ry. Co. v. Hutchins, 119 Ga. 504. There the defendant raised by its demurrer, not only the question of the right to recover, but also the question as to whether the damages claimed by the plaintiff were of such a character as to be recoverable. The demurrer, attacked not only the whole petition, but also the different paragraphs on the subject of damages. After it had been overruled the defendant failed to except to the ruling, and thus went to trial facing a species of compound estoppel, both as to right of action and as to measure of damages. But what in real substance did the transaction between the plaintiff and Holland & Webb amount to? That firm were commission brokers in the city of New York. They did not have yarns gf their own, bub placed orders with mills. Looking at all the communications between the two it seems, at least, doubtful whether the plaintiff thought that it was contracting with Holland & Webb on their individual responsibility. Its telegram of acceptance says: “Enter us for one hundred thousand pounds. . . Clinch this for us.” In another telegram plaintiff says: “Think mill should protect our offer.” If the matter of an anticipated dealing by Holland & Webb with a third party be left out of view, however, and the transaction be considered solely as between that firm and the plaintiff, how does it stand? The plaintiff does not pursue Holland & Webb or seek to hold them on the ground that it had a binding contract with them. It proceeds against the telegraph company on the ground that it lost the benefit of making a contract with that firm by reason of the mistake. Looked at in this light, it would seem that Holland & Webb gave to the telegraph company for transmission a telegram offering certain yaru for October delivery; that by error in transmission the telegram as delivered offered the yarn for December delivery. The plaintiff telegraphed its willingness to accept the shipments for December delivery. These telegrams, therefore, either made a complete contract, or an offer on one side which was nob accepted as it was made by the other. The offer was for October delivery; the acceptance was for December delivery. Thus viewed, the plaintiff’s complaint is, that, by reason of the defendant’s negligence, an offer or proposal to sell on certain terms was - not properly brought to it. While there is some conflict in the authorities, the more satisfactory line holds that, “ compensatory damages can nob be recovered of a telegraph company for failure to send or deliver a mere proposal '"to sell, . . as they are contingent upon its acceptance.” Beatty Lumber Co. v. Western Union Tel. Co., 52 W. Va. 410, and authorities there cited. Compensatory damages, as here used, mean such as measure actual loss,' and not mere nominal damages or the cost of transmission. On page 414 of the authority just cited Brannon, J., used the following language: “Bub the trouble facing the plaintiff in this case is that there was no finished contract between the parties, bub only a proposal for a contract; and there can be no contract without both a proposal and its acceptanee. The failure of the telegraph company did not cause the breach of a consummate contract. It only prevented one that might or might not have been made. . . To repel the argument that the acceptance of the proposals to sell in this case was uncertain and contingent, we' are told that Elias stated as a witness that his firm would have accepted that proposal, if it had been received. This will not prove the fact. That evidence does not make the fact certain. The opinion of this witness months afterwards can not go to that length.” P. 418. See also Smith v. Western Union Tel. Co., 83 Ky. 104; Western Union Tel. Co. v. Hall, 124 U. S. 444; Johnson v. Western Union Tel. Co., 79 Miss. 58; Clay v. Western Union Tel. Co., 81 Ga. 285; Western Union Tel. Co. v. Watson, 94 Ga. 202. Mr. Justice Simmons in delivering the opinion in the last-cited case said: “ This action is based .on the theory that if the telegram had not been shown Pitner, Watson would have made a different arrangement with himj that he would have induced Pitner to consent to use another gin until the gins he was expecting to receive should arrive, and thus get his commission on the sale of those gins. In order to do this, it would have been necessary to obtain the consent of Pitner, and Pitner might or might not have made the new arrangement with Watson. It is true Pitner says now that he would have made it; but we can not tell whether he would have done so or not; he might have been in a different state of mind then from the state of mind he was in at the trial of the case.” So in the present case, treating the contract as not completed, the contention is that an offer as received by the plaintiff was for December delivery, and Uiat if it had been for October delivery it would have been accepted. There is little doubt that the plaintiff, or its vice-president, thinks now that it would have accepted the offer, but it is exceedingly speculative, as a basis for damages, to say that if an offer had been received the plaintiff would have accepted it, and would have derived certain advantages from it.

While there is some evidence that the plaintiff placed an order at an advanced price, there is none as to how large an order was so placed, or how much the actual loss of the plaintiff was. The decision in Hollis v. Western Union Telegraph Co., 91 Ga. 801, is in harmony with those just cited, making the recovery depend upon the actual loss. See also U. S. Telegraph Co. v. Wenger, 55 Penn. St. 262.

Several of the authorities cited by the plaintiff in error were cases brought by the senders of telegrams. In some of the other cases there was a failure to correctly transmit or promptly deliver a message which would have closed a contract, the direct result of which failure was to cause a loss. The latter class of cases is well illustrated by Western Union Telegraph Co. v. Fatman, 73 Ga. 285, and Dodd Grocery Co. v. Postal Telegraph Cable Co., 112 Ga. 685.

Judgment affirmed.

All the Justices concur, except Simmons, G. J., absent.