Western Union Telegraph Co. v. Wofford

Chas. P. Kellogg Co. recovered in the District Court of Gonzales County a judgment against W.D. Wofford and J.W. Wemken for the sum of $776.32, besides costs, with a foreclosure of a mortgage upon two certain lots of ground in the town of Shiner, Lavaca County. W.D. Wofford had purchased Wemken's interest and owned the lots, having assumed the payment of the judgment. Order of sale was issued for the sale of the lots, directed "to the sheriff or any constable of Lavaca County," and was delivered to the sheriff of that county, who advertised the property to be sold at Hallettsville on the 7th day of March, 1893. Messrs. Harwood Harwood were attorneys for Chas. P. Kellogg Co., and on the day the sale was to be made W.D. Wofford went to Gonzales and made a payment to Harwood Harwood upon the judgment, whereupon that firm of lawyers sent a telegram as follows: "To J.F. Houchins, Hallettsville: Wofford has paid part of judgment; do not sell to-day. Harwood Harwood." Houchins was the sheriff of Lavaca County. The message was received by the telegraph company at Hallettsville at about 11:20 a.m. on the 7th of March, 1893, but Houchins was out of town at the time the message was received and did not return until about 3 o'clock, when the message was delivered to him just as he got off the train. Pat Muckleroy was the deputy of Houchins and made the sale of the lots at about 2 o'clock of that day to one Holloway at $155. The lots were at the time worth about $1500.

Defendant's agent at Gonzales, to whom the message was delivered for transmission, and the agent at Hallettsville each knew that Houchins was the sheriff of Lavaca County. There is no evidence as to whether the telegram was presented at Houchins' office or not, except that Pat Muckleroy, the deputy, testifies that he was in and out of the office during the day and that he heard nothing of the telegram until Houchins showed it to him. There is no evidence that Muckleroy or anybody connected with the sheriff's office had any authority to open a message directed to Houchins personally. Muckleroy and Houchins were both on the stand as witnesses, but neither testified that if the telegram had been delivered at the office it would have been opened and that the sale would thereby have been prevented. There is no dispute of the fact that the defendant company delivered the message to Houchins at the earliest time it could have been delivered to him in person, and the issue is, — does the testimony show negligence on the part of the company in failing to deliver it at the office of the sheriff?

The primary duty of the telegraph company in this case was to deliver the message to J.F. Houchins in person. Cros. on Elec., sec. 412; Telegraph Co. v. Houghton, 82 Tex. 563; Pearsall v. Telegraph Co., 124 N.Y. 256; Joyce, Elec. Law., sec. 743. If Houchins could not be found within the delivery limits of the office, then it was the duty of the company to deliver the message at his office or at his residence, if there was at either a person authorized to receive it. Joyce, Elec. Law, sec. 743; Telegraph Co. v. Woods, 56 Kan. 737. While it is the duty of the company in making a diligent search for the person addressed to resort to the place of business, the residence, and any other place where the circumstances indicate that he may be found, it is not the duty of the company to deliver the message at any such place unless some person to be found there is authorized to receive the message, and the failure to deliver at either the place of business or the residence, when no person at either place is so authorized, would not constitute negligence or a breach of the contract on the part of the telegraph company.

In the case of Pearsall v. Telegraph Company, before cited, a telegram was directed to T.W. Pearsall Co., Mills Building, New York, and, as we understand the case, the receiving operator inclosed the telegram in an envelope addressed to T.W. Pearsall. The messenger took it to the place of business of T.W. Pearsall, the office of T.W. Pearsall Co., and left it there, but there being no one present authorized to open the private message of T.W. Pearsall, it was left unopened until his return the next day. When opened, the message was found to contain a request to the company to purchase stock of the Western Union Telegraph Company, which was done at once at a price greater than the market value on the previous day, and suit was brought for the difference as damages arising from the delay in the delivery of the message. The court held that the failure to deliver to Pearsall Co. constituted a prima facie breach of the contract and entitled the plaintiff to recover. It is true that the negligence consisted in the misdirection of the envelope, but the principle involved is that the delivery must be to the person to whom it was addressed. In that case, it was actually delivered to the firm of which T.W. Pearsall was a member, but the delivery was not authorized if it had been for him personally for the reason that no one there was empowered to open the message.

In the case of Pearsall v. Telegraph Company, the court held that proof of failure to deliver the message of Pearsall Co. made a prima facie case of breach of contract, and we are of the opinion that the converse of the proposition is true, — that proof of prompt delivery of the message in this case to Houchins was prima facie a compliance with the contract and a discharge of the obligation of the telegraph company.

Let us suppose that Houchins, being absent from the city, the telegraph company had delivered the message to Muckleroy at the sheriff's office; that Muckleroy, having no authority to open the private telegram of his principal, laid it aside without notifying the sheriff of its delivery, and that the sheriff after returning, being ignorant of the message, proceeded to sell the property, — would not the telegraph company be liable to the plaintiff for delivering the message to a person not authorized to receive it? We are of opinion that under such state of facts, the company would be liable and that it would be held that the telegraph company should, under such state of case, have held the telegram until the return of the sheriff to the town, making prompt delivery to him upon his arrival, as was done in this case.

When the telegraph company found that Houchins was not in Hallettsville, it ought to have tendered the message at his office, and if there was any one there authorized to receive it, the message should have been delivered to that person. But to authorize a recovery because the message was not delivered to the person who was in charge of the office, the plaintiff must prove that such person was authorized to open it and that he would have opened it if delivered and would not have sold the property after receiving it. We therefore conclude that there is no evidence of any negligence on the part of the telegraph company which justifies the judgment rendered in this case.

It is therefore ordered that the judgments of the District Court and of the Court of Civil Appeals be reversed and that the case be remanded.

Reversed and remanded.