
    WESTERN UNION TELEGRAPH CO. v. WOODS.
    (Court of Civil Appeals of Texas.
    Dec. 14, 1910.
    Rehearing Denied Jan. 11, 1911.)
    1. TELEGRAPHS AND TELEPHONES (§ 67) — Delay — Evidence.
    Where plaintiff wished to purchase a bull and sent a telegram to his agent at A., to go to the bank and get money to pay for the bull, without notifying the telegraph operator that the bull was to be shipped from A. to S., where he was to be sold, and the telegram was delayed, so that plaintiff lost the purchase, in the absence of custom charging the telegraph company with notice that the bull was to have been sold at S., evidence of that fact was inadmissible.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 64-68; Dec. Dig. § 67.]
    2. Telegraphs and Telephones (§ 70) — Delay — Measure op Damages.
    Where plaintiff sent a telegram to his agent at A. to go to the bank and get money to purchase a bull, and the telegram was delayed, so that the purchase was lost to plaintiff, the measure of damages was the difference between the price agreed to be paid for the bull in A. and the price plaintiff would have to pay for a bull of like grade in the same place.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 72, 73; Dec. Dig. § 70.]
    Appeal from Nueces County Court; Walter F. Timón, Judge.
    Action by S. H. Woods against the Western
    Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Webb & Goeth and M. S. Hallam, for appellant. J. C. Scott and H. M. Holden, for appellee.
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   FLY, J.

This is a suit for damages instituted by appellee, alleged to have accrued on account of the failure to deliver a telegram sent by appellee, from Alice, Tex., to his stepson, Robert Spence, at San Antonio, Tex., as follows: “Go to Frost’s Bank and get money.” It was alleged that appellee desired to purchase a bull and had made arrangements for Spence to buy one for him, and that the telegram was sent in reply to one saying, “Bought, will need money at once,” and if his telegram had been delivered to Spence, the purchase of the bull, for $175, would have been consummated and the bull would have been shipped to San Diego, Duval county, Tex., where he would have been of the reasonable market value of $500, that $10 would have paid freight on the bull to San Diego, and appellee was damaged in the sum of $315, by the failure to purchase the bull, which was caused by the failure to deliver the message sent him. The cause was tried without a jury, and judgment was rendered for ap-pellee for $315.

We think the evidence was sufficient to show a market value for the bull at San Diego, but what if the market value of the bull was proved to be a certain amount at San Diego, how can appellant be held liable for damages measured by such market value? It is not pretended that the agent of appellant, either at San Antonio, where the bull was contracted for, or at Alice, where appel-lee received the message of 'Spence and where he answered it, knew that the bull was to be shipped to San Diego, and any other point of ultimate destination for the bull was as much. in contemplation of the parties as San Diego. There is not a word of testimony that tends to show that the agent at Alice or the agent at San Antonio knew where appellee lived, or that he was a breeder of fine cattle at some point, and desired to ship the bull to that point. Appellee did not state that he told the operator at Alice that the bull was to be shipped to San Diego, or to any other place, but merely told him that he “had a deal on for a bull, and had to get the money there (at San Antonio) that evening.” The agent knew, therefore, that it was important to get the message to San Antonio with promptness or appellee would lose the chance to buy a bull, that he was anxious to purchase ; but it could not have been within the contemplation of the agent that the bull would be shipped to some point distant from San Antonio, and that appellee would lose the difference between the value of the bull at that point and its value at San Antonio. The circumstances necessary to create the case for damages relied on by appellee were wholly unknown to appellant, and it could not have been in contemplation that any damages but those that would arise at San Antonio from a failure to deliver the message would be demanded, and he could not have contemplated damages would be demanded that might arise from the high market value of the bull at some undisclosed point. If it had been customary or usual for bulls to he bought in San Antonio and shipped to San Diego, or even Alice, appellant might be charged with notice that the market value at those places would control in fixing damages for negligence; but no such custom was shown, and there was not a single circumstance tending to notify appellant that the bull would be shipped from San Antonio to any point. All the damages that could have been in contemplation of the parties were those likely to arise in San Antonio, by a failure to have the message delivered promptly at that place.

The measure of damages in this case, under the facts in evidence, is the difference between the contract price and the market price at the place of purchase, on the day on which the option expired. In the case of Brewster v. Western Union Tel. Co., 65 Ark. 537, 47 S. W. 560, a partner had secured an 'option on cattle, which was lost by a failure to deliver a telegram from another partner. No money had been paid on the contract price. The Supreme Court of Arkansas held: “It is manifest, therefore, that plaintiffs were not injured, unless, on the 14th day of May, at the time the telegram was delivered, the market value of cattle of the grade purchased was at that place greater than the contract price, or unless, on account of the scarcity of cattle or for some other reason, plaintiffs could not, by the use of due diligence, after the delivery of the telegram, have purchased the like number and grade of cattle for the contract price. The law requires that a party should exercise due diligence to avoid injury to himself, and the measure of damages in such a case is the difference between the contract price of the cattle and that which plaintiffs would have been compelled to pay at the same place in order, by due diligence, after delivery of the telegram or notice of the failure to deliver it, to purchase the same number and grade of cattle.” To the same effect are Squire v. W. U. Tel. Co., 98 Mass. 232, 93 Am. Dec. 157, and W. U. Tel. Co. v. Hall, 124 U. S. 444, 8 Sup. Ct. 577, 31 L. Ed. 479. It follows that the measure of damages in this case would be the difference between the price agreed to be paid for the bull in San Antonio and the price that appellant would have been compelled to pay for a bull of like grade in San Antonio. Telegraph Co. v. Brown, 84 Tex. 54, 19 S. W. 336; W. U. Tel. Co. v. Carver, 15 Tex. Civ. App. 547, 39 S. W. 1021.

It may be that it will develop on another trial, under proper allegations, that a bull of the same grade and character could not be purchased in San Antonio, and consequently there was no market value in that place, in which event the reasonable value of the bull delivered in San Antonio, wherever purchased, would form the basis for an ascertainment of the damages. The value of the bull in San Diego could not form the basis for arriving at any damages sustained by appellee, and for that reason testimony on that subject was improperly admitted in evidence.

The judgment is reversed, and the cause remanded.  