
    Annarino v. Postal Telegraph Cable Co.
    
      Telegraph companies — Failure to make seasonable deliveries— Evidence — Proof of other deliveries to residence after business hours, competent — Measure of damages — Telegram offering to sell merchandise — Section 8U-7, General Code — Recovery of damages notwithstanding addressee purchased other merchandise.
    
    1. Telegram, filed for transmission from Cincinnati to Toledo at between 5:09 and 5:27 o’clock p. m. one day, and not delivered until 7:30 o’clock the following morning, though by its terms' it required immediate answer, held not as matter of law seasonably delivered.
    2. In action by addressee for damages for delay in delivery of telegram, evidence ¿that other messages to plaintiff had been delivered after business hours held competent as showing defendant knew where delivery could be made.
    
      3. Under Section 8447(3), General Code, measure of addressee’s damages for delay in delivery of telegram containing offer to sell merchandise is difference between price offered and market price at time of delivery.
    4. Addressee, damaged by delayed delivery of telegram containing offer to sell merchandise, may recover damages irrespective of whether he has purchased other merchan-. dise.
    (Decided March 15, 1926.)
    Error: Court of Appeals for Lucas county.
    
      Messrs. Fritsche, Kruse £ Winchester, for plaintiff in error.
    
      Messrs. Marshall, Melhorn, Marlar £ Martin, for defendant in error.
   Richards, J.

The action was brought by Annarino for the purpose of recovering damages claimed to result from delay in the delivery of a telegraph message. The trial resulted in a directed verdict for the defendant at the close of plaintiff’s evidence. The telegram was filed in the defendant’s office in Cincinnati on February 26, 1923, between 5:09 and 5:27 p. m., and reads as follows:

“Tropical Fruit Co., 21-25 N. Huron St., Toledo, Ohio: Unable ship sevens todays steamer reserving car Frisco sixes give you preference three dollars cwt must answer immediately.
“J. J. Geis Co.”

The message was not delivered to the plaintiff until about 7:30 o ’clock on the following morning, when he immediately wired an answer accepting the offer, but was informed by the Geis Company that his answer was too late.

The telegram offered a carload of bananas known as “sixes,” and, Annarino being unable to secure that carload, and being unable to buy elsewhere bananas of that description, bought a carload described as “sevens,” at a price of $4 per cwt. The evidence tends to show that the market price of bananas known as “sixes,” on the 26th, 27th, and 28th of February, at the place of delivery, was $4 per cwt.

The directed verdict for the defendant cannot justly be based on the claim that the telegram, as a matter of law, was seasonably delivered. The message itself calls for an immediate answer, and the plaintiff offered to prove that, prior to the date of this message, the company had delivered to him, at his home in Toledo, other messages which arrived after business hours. This was competent, and should have been received for the purpose of showing that the defendant knew where delivery could be made.

The directed verdict seems to have been based on the contention made by the company that the plaintiff had no cause of action, unless he had purchased other bananas of the same quality in the open market. No such duty rested on the plaintiff. The measure of damages is fixed by Section 8447, General Code, par. 3, as the difference between the contract price and the market price at the time of delivery, and it is not important to inquire whether the plaintiff did or did not purchase other bananas on the market. As is well said in 24 Ruling Case Law, 70: “To entitle the buyer to such damages, he is not required to supply himself by repurchases elsewhere. ’ ’

It is true the plaintiff’s amended petition pleads that he did purchase bananas in the open market, but that averment may be treated as surplusage.

For the reasons given, the judgment will be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Williams and Young, JJ., concur.  