Postal Tel. Cable Co. v. Lathrop
131 Ill. 575 (1890)
WILKIN, J.
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The controlling question in the case, so far as we are at liberty to pass upon it, arises on the refusal of the trial court to give the third instruction asked by appellant, as follows: ‘(3) The jury are instructed that the defendant is only liable for such damages, if any, as were actually contemplated, or which might reasonably be supposed to have been contemplated, by the parties in the delivery and receipt of the messages in the transmission of which the alleged errors occurred; and if the jury believe from the evidence that such messages were not sufficiently clear or precise to inform the agents of the defendant receiving them of their meaning, and of the possible risk and damage which might result from mistakes in their transmission, and that such facts were not disclosed by the plaintiffs to the defendant or its agent, then the defendant cannot be charged with having contemplated the special damages claimed by the plaintiffs in this action, and plaintiffs are only entitled to recover the amount actually paid by them for the sending of such messages, with interest at 6 per cent. from the date of payment to the date of your verdict.’ It is earnestly contended by counsel for appellant that the messages, ‘Please buy in addition to thousand August, on thousand cheapest month,’ and ‘Put stop order on five thousand Dec. at seventeen cents,’ were, unexplained, meaningless and unintelligible to the operator of appellant who transmitted them; and therefore, as in case of cipher dispatches, no special or consequential damages could have been reasonably contemplated by the parties when they were sent, and hence none can be recovered in this suit. This position is based on the rule of damages announced in Hadley v. Baxendale, 9 Exch. 341, and followed generally in this country as well as in England. In any view of that rule, as applied to this case, the instruction is too narrow. The evidence shows that at the time of sending these dispatches appellees were, and had for some time prior thereto been, engaged in the business of jobbers in coffee, tea, and sugar in the city of Chicago; that Crofman & Bro. were commission merchants in New York, buying and selling coffee, rubber, and hides on commission; that appellant had a branch office near the place of business of appellees, from which the messages in question were sent, and had frequently sent others pertaining to their business. It also tends to show that from business transactions in New York between appellant and the firm of Crofman & Bro. appellant knew the business in which the latter firm was engaged. It is in proof that during the month of June, 1887, and prior to the first mistake complained of, a number of dispatches were sent by appellees to Crofman & Bro. from appellant’s Chicago office. One on the 13th read: ‘Please wire us to-day whether you do or do not execute an order for five thousand bags, as we must place it elsewhere if you decline.’ Another of the same date refers to ‘five thousand bags.’ It must, at least, be conceded that there is evidence tending to show that from their previous dealings appellant knew, or might by reasonable diligence have understood, the purport of these messages. Therefore, in determining whether or not the messages were sufficient to inform the operator of their meaning, and of the possible risk of loss to appellees by a mistake in transmitting them, the jury should have been left free to consider all the facts and circumstances proved in the case bearing on that question, whereas the instruction limits the inquiry to that which appears in the dispatches themselves, and to such facts as may have been disclosed by the plaintiff to the defendant or its agent at the time they were sent. See 2 Thomp. Neg. 857.
On the question as to how far mere indefiniteness in the language of a message will defeat a recovery for consequential damages against a telegraph company, the decisions cannot be said to be harmonious. Counsel for appellant contends that the better line of authorities sustains the rule announced in this instruction, viz., that the operator who transmits a message must be able to understand its meaning as to quantity, quality, price, etc., as the sender and party to whom it is sent themselves understood it; otherwise it is said he cannot reasonably be supposed to have contemplated damages as the probable consequence of a failure to correctly transmit it. While some of the cases cited go to that extent, especially where the message is in cipher, another line of decisions, and we think founded on the better reasons, hold that where enough appears in the message to show that it relates to a commercial business transaction between the correspondents it is sufficient to charge the company with damages resulting from its negligent transmission. In Telegraph Co. v. Wenger, 55 Pa. St. 262, a message read: ‘Buy fifty (50) North Western fifty (50) Prairie du Chien, limit forty-five (45.)’ There was a delay by the telegraph company in its delivery, resulting in a loss to the sender on account of the advance in price of Chicago & Northwestern Railway Company stock and the Milwaukee & Prairie du Chien Railway Company stock, which the message was intended to order purchased. The supreme court of Pennsylvania sustained a recovery, saying: ‘The dispatch was such as to disclose the nature of the business to which it related, and that the loss might be very likely to occur if there was a want of promptitude in transmitting it, containing the order.’ In Tyler v. Telegraph Co., 60 Ill. 421, the message was: ‘Sell one hundred (100) Western Union. Answer price.’ The message, as delivered, read, ‘Sell one thousand, (1,000,)’ instead of ‘one hundred, (100.)’ The message was intended as an order to sell 100 shares of stock in Western Union Telegraph Company. The agent, obeying the order as delivered, sold 1,000 shares of said stock, and to fill the order was compelled to buy 900 shares. We held that the plaintiff was entitled to recover the difference between the price for which the shares of stock were sold and that which he was compelled to pay for those purchased. On the question as to the sufficiency of the dispatch to inform the agent of the transaction to which it referred so as to charge the telegraph company with resulting damages, the rule announced in Telegraph Co. v. Wenger, supra, was approved, and it was held that the dispatch disclosed the nature of the business as fully as the case demanded. On a second appeal (74 Ill. 168) by general language the decision is reaffirmed. In Telegraph Co. v. Griswold, 37 Ohio St. 302, a dispatch read: ‘Will you give one fifty for twenty-five hundred at London? Answer at once as I have only till to-night.’ As delivered, it read ‘one five’ instead of ‘one fifty,’ as written. It was an inquiry whether the sender would pay 150 in gold for 2,500 bushels of flax-seed at London, Ontario, the parties having previously corresponded on the subject. The sender replied to the dispatch as received, ordering the purchase, and recovered from the telegraph company the difference in price. On appeal to the supreme court, it was contended, as it is here, that the message was indefinite, and therefore the recovery below unauthorized. But the court said: ‘It appeared upon its face that it related to a business transaction,–a transaction involving the purchase and sale of property. The company was therefore apprised of the fact that a pecuniary loss might result from an incorrect transmission of the message. Where this appears, there is no such obscurity as relieves the company from liability for negligently failing to transmit and deliver the message in the language in which it was received.’ In Marr v. Telegraph Co., 1 Pickle, 530, 3 S. W. Rep. 496, a message was delivered to the company reading: ‘Buy one hundred shares Memphis and Charleston.’ As delivered it read: Buy one thousand shares Memphis and Charleston.’ The recovery for consequential damages was sustained, the supreme court of that state saying: ‘This message was so written that the slightest reflection would enable the operator, who understood its transmission, to see its commercial importance, and put him on his guard against error.’ In Telegraph Co. v. Blanchard, 68 Ga. 299, the message sent read: ‘Cover two hundred September one hundred August.’ By an error in its transmission, as received it read 200 August instead of 100. As sent, it was an order to sell 100 bales of cotton for August delivery, and 200 for September delivery. The agent sold 200 bales for August, and plaintiff was compelled to buy 100 at a loss in order to meet the sale. A recovery for this loss was sustained by the supreme court of that state, in the following language: ‘As to the fifth ground in the request to charge, we do not see but what the message sought to be transmitted was, according to the proof, an ordinary commercial message, intelligible to those engaged in cotton dealing; and we can see no such special purpose intended by the sender, which was unknown to the company, *585 as to vary the rule of liability. There was at least enough known to show it was a commercial message of value, attached to the message, and that is sufficient.’ See, also, Squire v. Telegraph Co., 98 Mass. 232;Pepper v. Telegraph Co., (by the supreme court of Tennessee,) 11 S. W. Rep. 783; 3 Suth. Dam. 301.
All the cases which hold that a telegraph company is not liable for consequential damages for a failure to transmit a dispatch as received, on the ground of indefiniteness or obscurity in the language of the message, do so upon the ground that, unless the agent of the company may reasonably know from the message itself, or is informed by other means, that it relates to a matter of business importance, he cannot be supposed to have contemplated damages as a result from his failure to send it as written, as in the case of cipher dispatches. The supreme court of Wisconsin in Candee v. Telegraph Co., 34 Wis. 472, say: ‘The operator who receives and who represents the company, and may for this purpose be said to be the other party to the contract, cannot be supposed to look upon such a message as one pertaining to transactions of pecuniary value and importance, and in respect to which pecuniary loss or damages will naturally arise in case of his failure or omission to send it. It may be a mere item of news, or some other communication of trifling and unimportant character.’ It is clear enough that, applying the rule in Hadley v. Baxendale, supra, a recovery cannot be had for a failure to correctly transmit a mere cipher dispatch, unexplained, for the reason that to one unacquainted with the meaning of the ciphers it is wholly unintelligible and nonsensical. An operator would therefore be justifiable in saying it contains no information of value as pertaining to a business transaction, and a failure to send it, or a mistake in its transmission, can reasonably result in no pecuniary loss. The messages in this case, however, are not cipher dispatches. Their language is plain and intelligible to every one who can read, so far as they purport to disclose the business to which they relate. They are abbreviations, and clearly indicate that they relate to business transactions between the sender and sendee. The first message, ‘Please buy in addition to thousand August one thousand cheapest month,’ was notice to the agent at Chicago that appellee was ordering the agent in New York to purchase merchandise for them. We do not agree with counsel in saying that it might as well be construed to be an order ‘for a thousand tooth-picks or a thousand papers of pins as anything else.’ Every one of intelligence knows that such articles are not purchased in that way. Suppose, however, that the agent was not informed as to the quantity, quality, and value of the merchandise to be purchased by the message, would that justify him in contemplating, within the rule in the Hadley Case, supra, no damages as a result of his negligence or omission of duty in promptly and correctly sending it forward? It certainly cannot be contended that the agent must be informed of all the facts and circumstances pertaining to a transaction referred to in a telegram, which are known by the parties themselves, to make his company liable for more than nominal damages. If it should be so held, the telegraph would cease to be of practical utility in the commercial world.
It is not easy to state a case in which it can be said the parties contemplated, at the time of contracting, all the damages which will probably result from a failure to perform the contract. We think the reasonable rule, and one well sustained by authority, is that where a message as written, read in the light of well-known usage in commercial correspondence, reasonably informs the operator that the message is one of business importance, and discloses the transaction so far as is necessary to accomplish the purpose for which it is sent, the company should be held liable for all the direct damages resulting from a negligent failure to transmit it as written, within a reasonable time, unless such negligence is in some way excused. Under this rule, both dispatches as presented to appellant’s operator were sufficiently explicit to charge it with the loss sustained by appellees, resulting from what has been found by the jury to be its inexcusable mistakes.
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Finding no reversible error in the record, the judgment of the appellate court will be affirmed.