Western Union Telegraph Co. v. George F. Fish, Inc.

Offutt, J., delivered the opinion of the Court. On January 18th, 1923, “George F. Fish, Inc.,” a produce dealer operating in Baltimore'., addressed to John P. Nolan, its agent, then at Sanford, Florida., this telegram: “'Selling rough at cost four cars Florida one California ²¹² want none present Norfolk kicks prices market three four fifty Florida,” which it delivered to the Western Enion Telegraph Company for transmission. In transmitting it the word “none” was change to “more,” so that as changed it read: “Mr. John P. Nolan, Sanford, Florida.. Selling rough at cost four cars Florida oue California want more present Norfolk kicks prices market three four fifty Florida.” According to the plaintiff’s testimony, the message was intended to inform Nolan that the appellee had “plenty” of celery, that the market was declining and that he should not buy any more, but that in consequence of the mistake he bought seven cars of celery which had to he sold at a loss on a declining market.

The appellee thereupon demanded that the .appellant reimburse it for that loss, and upon its refusal to do so it sued the appellant in an' action on the case for the loss which it claimed to have sustained as a result of the negligent alteration of the word “none” into “more.” The trial of the case in the Baltimore City court resulted in a. verdict and judgment for the plaintiff, from which judgment the defendant appealed. The single exception found in the record presents for our consideration these points: (1) were the damages occasioned by the mistake within the contemplation of the parties when the contract for transmitting the telegram was made; (2) was the message “obscure” within the meaning of the appellant’s rules filed with the Interstate 'Commerce .Commission and printed on the hack of the telegram; and (3) was the error* complained of the proximate cause of the appellee’s loss ? And those questions grow out of these facts: Fish & Co., at the time the telegram was sent, was dealing largely in celery. Nolan was its manager, and at the time the telegram was sent he was in Florida, where he had gone to buy celery.

Nolan either bought or approved all purchases of celery for the appellee, and when he was away Miss Anita Goldblum was in charge of the Baltimore office, and she communicated with him almost daily in reference to the state of the celery market, telling what it needed and direct- ²¹³ rug him to buy or not to buy, accordingly as the market was rising ox falling. When he received the telegram the appellee had already bought a large quantity which had not been disposed of, but as soon as be received it be bought “seven to ten” ears more, on which the appellee suffered a loss of over five hundred dollars. It also appears from the evidence that rule 1 of the rules and regulations of the appellant on file with the Interstate; Commerce Commission and assented to- by the appellee contained this proviso.: “The company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any message received for transmission at the unrepeated message rate beyond the sum of five hundred dollars ($500) * * * nor in any case for delays arising from unavoidable interruption in the working of its lines; nor for errors in cipher or obscure messages.” The defendant’s first prayer presents the point that the damages suffered by the plaintiff" were not such as were in the contemplation of the parties when the contract was made; its third prayer rests upon the proposition that the plaintiff could only recover the cost of the telegram because the telegram was “obscure,” and hence; within the scope of the proviso we have just quoted, and its fifth prayer instructed the jury that there was no evidence in,the case legally sufficient to show that the damages suffered by the appellee were the direct and proximate result of the error. Some question was raised .as to the form of these prayers, but in our opinion they are sufficient to raise the questions we have stated, and we will now consider those questions in their order.

The appellant contends that its first prayer is based upon the rule stated in Hadley v. Baxendale, 9 Exch. 347, and approved by this Court in United States Telegraph Co. v. Gildersleeve, 29 Md. 232 , where it said: “The rule seems to be now pretty well established that a party can only be beld responsible for such consequences as may be reasonably sup ²¹⁴ posed to have been in the contemplation of both parties at the time of making the contract, and that no consequence, which is not the necessary or ordinary result of a breach can be supposed to have been so contemplated, unless full information be imparted to the party sought to be held liable at the time of entering into the engagement.” Referring to the same rule, it was said in Webster v. Woolford, 81 Md. 331 : The first part of the rule as thus laid down applies to cases in which the damages are the direct and natural result of the breach of the contract, and which the law presumes to have been in the contemplation of both parties. The latter part of the rule applies in cases where special damages are claimed under special circumstances made known by the plaintiff to the defendant at the time the contract was made; and in such oases the plaintiff1 is entitled to recover such damages as may' reasonably be supposed to have been in the contemplation of both parties in view of the circumstances thus disclosed. * * * (’Whether special damages may reasonably be supposed to have been in contemplation of both parties, depends in every case upon how much of the real situation of the parties was so' disclosed at the time the contract was made ;a,s to render it a fair inference of fact that damages of that class were intended -to be recouped if suffered. Gre bert v. Nugent, L. R. 15 Q. B. D. 85.” That rule was again approved in Western Union Telegraph Company v. Lehman, 105 Md. 448 , in the following language: ■“That case, however, remains the law of England, and has been generally approved in this country, and has been too often recognized in this State to be departed from even if we'were so disposed.” In the case last cited the question 'before the court was whether a telegraph company was liable for delay in transmitting a message reading “'Shipped cattle today,” and it was there held that the case fell within the first division of the rule.stated in Hadley v. Baxendale, supra, and that the damages were the direct and natural result of the breach of. the contract which the law presumed to have been in the ²¹⁵ contemplation of the parties. In the last cited case, the Court quotes these extracts, from Jones on Telegraph and Telephone Companies, sections 519 and 535: “It is. presumed they know, where no information is. given them to the contrary, that all messages are of importance, and that great loss or injury may he the result of a failure on their part to properly discharge their duty, and that they are therefore supposed to have contemplated all the damages flowing naturally and directly from such failure, though they may not have had actual knowledge of wha.t damages might result at the time, of accepting the message. * * * If it (the message) is sufficiently plain to indicate that it relates to business transactions of much importance, and that loss will probably result unless it is promptly transmitted and delivered, recovery will not be limited to nominal damages.” These eases, applying the rule first .stated in Hadley v. Baxendale, supra, in determining whether special damages may be recovered for the breach of a contract, hold that the party to be charged must have had notice at the time the contract was made that such damages, might result from its breach, but that the information may be conveyed by the language of the contract itself.

And that, in such a ease as this, if the message itself is clear enough to indicate that it relates to a business contract of importance and that loss will probably result through negligence in its transmission, recovery will not be limited to nominal damages. In this case there is no evidence legally sufficient to warrant the inference that the appellant had any notice other than that conveyed by the language of the message that it related to a business matter, or that loss would likely result from negligence in transmitting it, and the question is whether its language conveys that notice. While its language could have been plainer, it is obvious that it relates to some business transaction. It refers to sales, to the market, and to cars.

Those words are, we think, sufficient to inform any one as familiar with the ordinary language of trade and commerce as the appellant must necessarily be, that it at least referred ²¹⁶ to a business transaction, and it may also have reasonably been inferred that loss might probably result if the words “want none present” were changed so 'as to read “want more present.” It may, of course, be asked, and with some reason, how the damages could have been in the contemplation of the parties if one of them could not possibly have understood what the message meant or what it was about except that it probably related to some business transaction, but the answer to that is that in order to charge the appellant for loss resulting from its negligence in transmitting the message, it was unnecessary to apprise it of the details of the message, but only to inform it that it related -to a business transaction and that loss would probably occur if it were altered or delayed. That rule as thus stated cannot be regarded as a modification of the rule in Hadley v. Baxendale, supra,, because it recognizes the principle- that the damages must have been in contemplation of the parties at the time the contract was made, but it does supply a somewhat arbitrary formula for ascertaining what the phrase “in contemplation o-f the parties” means, but it has been recognized, not only by this Court, but by the weight of authority elsewhere, and must be regarded as the law, and the court was, therefore, justified in refusing the defendant’s first prayer. The defendant’s third prayer