July Term, 1887, No. 49, E. D., before Gordon, CL J., Paxson, Sterrett, Green, Clark, aud Williams, JJ. Error to the Common Pleas No. 1 of Philadelphia County to review a judgment on a verdict for the plaintiffs in an action on the case.
This was an action brought by Jacob B. Landis and Metz J. Erisman, trading as Landis & Erisman, against the Western Union Telegraph Company, for losses occasioned by an error in the transmission of a telegram.
The facts of the case were as follows:
The plaintiffs below, Landis & Erisman, were stock dealers in 1882, and carried on business at the stock yards in West Philadelphia. They had an agent at the stock yards at East Liberty, near Pittsburgh, for the purpose of buying stock. In April, 1882, he bought a lot of sheep for his principals, and on April 27, 1882, he deposited the following message at the office of the Western Union Telegraph for transmission to his principals;
To J. B. Landis, Abattoir, W. Phila.,
One cost six half two wooled texas ¿ve sixty take all off evening. H. Erisman.
This message was transmitted by the defendant below, first to its office in Pittsburgh, thence to its central office in Philadelphia, at Tenth and Chestnut streets, and thence to the abattoir in West Philadelphia, where it was received by the operator, written on one of the blanks in use by the defendant for the delivery of messages, sent by a messenger boy to Mr. Landis, and delivered to him about half a square away.
In the course of the transmission, however, the word “sixty” in the original had been changed into six, and the message as delivered was, “One cost six half two wooled texas five six take all off evening.” When Mr. Landis read the message he suspected that an error had been committed, and went to the telegraph office and asked the operator whether it meant “five six” or “five sixty,” and requested him, as Landis testified, to ask the sender which it was, and the operator said: “I have asked him; it is ‘five six.’ I asked because I thought it was funny it was five six.”
Tire operator testified, that Mr. Erisman requested him to ask whether the message as received was correct, and that he went to his key and asked the operator at Tenth and Chestnut streets if the word was six, and received reply that it was; that he then told Mr. Erisman this, and he went away.
Nothing extra was paid for this service at the time it was rendered, nor was a charge included for it in the account subsequently rendered to tire plaintiffs, who settled with the company only on stated occasions. It appeared at the trial that the meaning of the message was that H. Erisman, the agent, had bought one car load of sheep at $6.50 per hundredweight and two car loads of rvooled Texas sheep at $5.60 per hundred; that these sheep were then known, according to the course of business between plaintiffs and their agent, to- be on the way to Philadelphia, and that the agent advised that they be all unloaded from the cars on the evening of their arrival.
After leaving the telegraph office the plaintiff .sold the two ear loads of wooled Texas sheep to a butcher at $6 per hundred, to be delivered on their arrival. The plaintiffs claimed that the sheep were worth $6.50 per hundred, and that they would have sold them at that price had the message been correctly received. The message delivered contained the usual printed conditions that “the company will not hold itself liable for errors or delays in transmission or delivery of unrepeated messages beyond the amount of tolls paid thereon.”
Verdict and judgment were for the plaintiffs for $258.44; the damages having been assessed at fifty cents a hundred, with interest.
The assignments of error specified:
1. The plaintiffs having proved that their agent had delivered to the defendant for transmission to the plaintiffs, a message in the words: “One cost six half two wooled texas five sixty take ail off evening,” and that the said message related to car loads of sheep, and that in the course of transmission the word “six” had been substituted for “sixty,” and that he had offered them to a butcher at six cents per pound; the court erred in permitting the plaintiffs’ counsel to ask the witness Landis the question, Did you sell the sheep at that price ?
2. The plaintiffs having proved that the message was delivered to the plaintiffs by a messenger boy at a distance from the defendant’s office, and that he went to the operator with the message and asked him if that meant “five six,” or “five sixty,” the court erred in permitting the plaintiffs’ counsel to ask the question, What did he say ?
3. The court erred (William D. Shuster, a witness for defendant, being on the stand) in refusing to allow defendant to prove by the witness what the method is that is pursued by the company where messages are ordered to be repeated under the terms of the message blank, and to show that this method was not pursued on this occasion.
4. The court erred in charging the jury as follows:
The operator admits that they asked him to inquire back, and he told them he had asked back. What more one who wants a message repeated can do is hard to understand. All you can ask is to have it repeated. A citizen cannot know by what route his message was sent. The sender has no mode of compelling a repetition to originating office. If the receiver of the message asks to have it repeated, lie is not bound to know how it is done. If he asked to have it repeated, that was all he is bound to do. The liability of defendant is complete. It is beyond dispute that plaintiffs did ask to have the message repeated.
5. The court erred in refusing to affirm the following point submitted by defendant:
If the jury find that at the request of one of the plaintiffs the receiving operator asked back as to the correctness of the message, and asked only to the office from which he had received the message, and was assured that the word in the copy of the message before the sending operator was “six,” and that the operator so informed the plaintiff, and that the plaintiff paid nothing for this service; these facts do not amount to a repetition of the message provided for in the contract between the parties and the plaintiff.
6. The court erred in refusing to charge the jury as requested in the following point:
The plaintiffs, having sold sheep at a price above what was paid for them have suffered no loss, and can recover nothing from the defendant.
The true rule applicable to all cases of contract and tort, except where malice is shown, is such damages “as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things from such breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable results of the breach of it.” Hadley v. Baxendale, 26 Eng. L. & Eq. Bep. 398. See also Fleming v. Beck, 48 Pa. 312; Pittsburg Coal Co. v. Foster, 59 Pa. 365, 369; Hoag v. Lake Shore & M. S. B. Co. 85 Pa. 293, 298, 27 Am. Bep. 653; Pittsburgh Southern.B. Co. v. Taylor, 15 W. N. C. 37, 42.
The same principle governs the measure of damages in telegraph cases everywhere; and its application to such cases is recognized in United States Teleg. Co. v. Wenger, 55 Pa. 5362, 93 Am. Dec. 751.
The message in this case is unintelligible. It is not apparent to what subject-matter it relates, nor does it intelligibly disclose what is affirmed concerning that subject-matter.
The damages recoverable from the telegraph company for failure of its contract for the delivery of such a message are simply nominal. Gray, Communication by Telegraph, p. 161; Candee v. Western U. Teleg. Co. 34 Wis. 471, 17 Am. Bep. 452; Mackay v. Western U. Teleg. Co. 16 Nev. 222; Dorgan v. Telegraph Co. 1 Am. L. T. N. S. 406, Fed. Cas. No. 4,004; Daniel v. Western U. Teleg. Co. 61 Tex. 452, 48 Am. Bep. 305.
Another line of cases in which the telegraph company is. held liable for nominal damages only belongs to this same class, although they do have a meaning on their face. They are thus classified because they do not disclose to the company any factor for ascertaining the extent of damage in case of default or negligence. Baldwin v. United States Teleg. Co. 45 N. T. 744, 6 Am. Bep. 165; Behm v. Western U. Teleg. Co. 8 Biss. 131, Fed. Cas. No. 1,234; First Nat. Bank v. Western U. Teleg. Co. 30 Ohio St. 555, 27 Am. Bep. 485; Landsberger v. Magnetic Teleg. Co. 32 Barb. 530.
, Substantial damages are allowed against a telegraph company for default or negligence in transmitting a message, only where it is a direction to buy or sell some commodity or.the message contained an order for goods. These cases are of two kinds:
First, when the message contains the name and quantity of the subject-matter had in contemplation. In these cases substantial damages have been allowed. New York & W. Printing Teleg. Co. v. Dryburg, 35 Pa. 298, 78 Am. Dec. 338; United States Teleg. Co. v. Wenger, 55 Pa. 262, 93 Am. Dec. 751; Harris v. Western U. Teleg. Co. 9 Phil a. 88.
Second, when the message contains either the name of the subject-matter or the quantity had in contemplation. In such cases substantial damages have been allowed in True v. International Teleg. Co'. 60 Me. 9, 11 Am. Rep. 156; Seiler v. Western U. Teleg. Co. Allen Teleg. Cas. 687; Squire v. Western U. Teleg. Co. 98 Mass. 232, 93 Am. Dec. 157.
But in the following cases only nominal damages were allowed: Stevenson v. Montreal Teleg. Co. 16 U. C. Q. B. 530; McColl v. Western U. Teleg. Co. 7 Abb. N. C. 151; Beaupre v. Pacific & Atlantic Teleg. Co. 21 Minn. 155; Shields v. Washington Teleg. Co. Allen Teleg. Cas. 5, and Kinghorne v. Montreal Teleg. Co. Allen Teleg. Cas. 98; United States Teleg. Co. v. Gilder sieve, 29 Md. 232, 96 Am. Rep. 519; Hord v. Western U. Teleg. Co. 3 Ohio Dec. Reprint, 555; Gray, Communication by Telegraph, p. 157.
In the present case neither the subject-matter nor the quantity is named. The message does nothing but aifirxn a fact. No loss could have arisen, if the plaixxtiffs had pursued the usxxal course. On the arrival of the sheep they woxxld have discovered the error in the message. The sale before the arrival was not contexxxplated in the message, or indeed by the parties. On arrival of -the sheep the plaixxtiffs shoxxld have broken their contract of sale. The facts of this case do not amouxxt to a repeated message. The entire duty of the operator was performed when he delivered the xxxessage. His subsequent acts coxxld not bind the coxnpaxxy. United States Teleg. Co. v. Gildersleve, 29 Md. 232, 96 Am. Dec. 519.
The damages sued for are prospective profits xnerely, which cannot be recovered.
The xnessage in this case was in fact repeated. The company could have charged for it in its account with the defendants in error. It cannot take advantage of its failure to do so.
The damages were properly estimated.
