
    Scott & Geraci v. The Postal Telegraph Co.
    (Decided February 6, 1933.)
    
      
      Mr. Joseph R. Rohrer and Mr. William R. Meier, for plaintiff in error.
    
      Messrs. Waite, Schindél é Bayless and Mr. Herbert Shaffer, for defendant in error.
   Hamilton, J.

The original action was brought in the municipal court of Cincinnati, and was an action for damages brought by plaintiff in error, Scott & Geraci, against the Postal Telegraph Company, growing out of the failure to deliver a telegram.

The municipal court rendered judgment for the defendant company, which judgment, on error to the court of common pleas, was affirmed by that court.

Plaintiff in error brings this proceeding seeking a reversal of the judgments of the common pleas and municipal courts.

The facts are not in dispute.

It appears from the record that the plaintiff, Scott & Geraci, a partnership, a produce dealer in the city of Cincinnati, was in need of a supply of lettuce and had sent urgent telegrams of inquiry to different wholesale produce dealers throughout the country, inquiring for lettuce, the supply of which appeared to be short, and that on Sunday night, June 29, 1930, the Hartner Produce Company of Denver, Colorado, sent a telegram to the plaintiff in words and figures as follows:

“1930 June 30 P. M. 6:57.

“Denver, Colo. June 29-30.

‘ ‘ Scott & Geraci, Cincinnati, Ohio.

“Offer subject unsold out Monday car containing hundred forty crates fancy peas forty five pounds net at two sixty five and hundred sixty crates iceberg fairly firm clean and bright heavy fours balance five at two fifty f. o. b. Denver.

“Hartner Produce Co.”

In the regular course of business this telegram should have been delivered to the plaintiff about eight o’clock Monday morning, June 30th. The telegram was not delivered by the telegraph company, until 6:57 p. m., of that day. At 1:44 p. m., of June 30,1930, the plaintiff received a telegram from the Hartner Produce Company in words and figures as follows:

“1930 June 30 PM. 1:44

“Scott & Geraci, Cincinnati, Ohio.

‘ ‘ Supplementing nightletter Sunday make price letter two quarter.

“Hartner Produce Company.”

Considering the case, it must be borne in mind that this second telegram is supplemental to the first, which was undelivered at the time. At 5:13 p. m., on the same day, the plaintiff sent a telegram to the Hartner Produce Company in words and figures as follows:

“Cin’ti., O., 6/30/30.

“Hartner Produce Co., Denver, Colo.

“Never received Sunday nightletter if good quality ship car lettuce B and O wiring number manifest bill lower if possible.

“Scott & Geraci.”

It appears that the Hartner Produce Company prior to the receipt of the telegram from plaintiff had disposed of the car of produce, but offered to load another car for plaintiff by Tuesday or Wednesday. Plaintiff took no action regarding this offer to ship on a future date.

On the second day of July, 1930, the plaintiff sent to the defendant company the following letter message :

“Cincinnati, OMo, July 2,1930.

“Claim Department, Postal Telegraph Co., Cincinnati, Ohio.

‘ ‘ Gentlemen: This is to advise you to Mndly make record in your office that we will enter claim against your company for our loss on a mixed car of Lettuce and Peas. Ño doubt on investigation you will find your office failed to deliver to us a wire from the Hartner Produce Company, and just as soon as we have our files complete, will forward claim to you.

“Yours very truly,

“Scott & Geraei.”

Evidence was produced as to the price of the produce at Denver, Colorado, and the market price at Cincinnati at the time the shipment should have arrived in Cincinnati in due course, as the measure of damage.

Defendant in error urges that the judgment below is correct, first, for the reason that the plaintiff, having received the telegram at 1:44, is estopped to claim damages by reason of its failure to accept until 5:15 of the same day. Had it promptly accepted the telegram at 1:44 p. m., it would have been received by the Hartner Produce Company prior to the sale of the car to other parties; second, that no proper claim was filed within the 60-day period as required in the indorsement on the back of the telegram; third, that the telegram of acceptance, transmitted by the plaintiff at 5:13, was conditional; fourth, that the claim of the plaintiff for damages was speculative.

Plaintiff in error contends that the trial court was in error in its rulings on the questions raised; and, further, claims error in the exclusion' of evidence offered by the plaintiff.

The question of evidence grows out of the following question asked Scott, one of the partners: “Q. State what you would have done if the June 29, 1930, Hartner night letter, which is Exhibit C in this case, had been delivered seasonably?”

The court sustained an objection to the question. Whereupon, the plaintiff made the following proffer: “The witness, if allowed to answer this question, would testify that if this message had been delivered at the regular time on Monday morning, he would have accepted it immediately.”

The record does not disclose any exception taken to the sustaining of the objection, further than the proffer made. While the question might have been more explicitly framed, it was clear as to what it referred, and particularly in view of the supporting evidence that plaintiff had endeavored to secure lettuce and that there was a scarcity of same; that it had sent letters to other produce companies, and within a short period after the receipt of the second telegram sent a telegram of acceptance.

The question should have been admitted. However, it is not determinative of the case here.

Neither are we in accord with the ruling of the court on the question of laches or delay in answering acceptance of the second telegram. It must be borne in mind that the second telegram received from Hartner Company necessarily inferred that the plaintiff had received the first telegram. The plaintiff, not having received the first telegram, could not know that the offer in .the second telegram was made subject to prior sale, since prior sale was only mentioned in the first telegram. It accepted the second telegram somewhat blindly, for the reason that it could not know the conditions and the terms and kind of produce offered in the first telegram. This second telegram was sent about three and one-half hours after receipt of the telegram at 1:44. This was not an unreasonable delay, particularly in view of the fact that the second telegram proceeded on the theory that the first telegram had been delivered, which was not the cqse,

This also answers the proposition that the acceptance by the telegram of 5:15 was conditional.

It is urged that the damages are speculative; that the plaintiff made no effort to buy lettuce on the market or show that it could not be so obtained.

The plaintiff was not bound to go into the market to supply the requirements under the offer of purchase.

Section 8447, General Code, a section of the Sales Act, answers this question. It provides, in paragraph 3: “When there is an available market * * * the measure of ’damages * * * is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered * * *.”

In 24 Euling Case Law, 70, it is stated: “To entitle the buyer to such damages he is not required to supply himself by repurchases elsewhere.”

To hold as claimed by defendant in error would be to hold that the plaintiff was not diligent enough to satisfy and offset the negligence of the postal company in its failure to deliver the telegram within a reasonable time. The law is that a party-may show loss of profit in a transaction of this character, and the measure of damage is the difference in the price at the time of the purchase and the market price at the time when in the usual course delivery should have been made.

Our conclusion is that if the claim was duly filed with the defendant company, plaintiff would be entitled to recover.

The blank form upon which the night letter of June 29, 1930, was written provided as follows: “5. The Company shall not be liable for damages * * * in any ease where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.”

This blank form was duly filed with and approved by the Interstate Commerce Commission, presumably so, since such filing is not denied.

This requirement has been established in law to be a reasonable and valid limitation, and failure to file a claim within sixty days bars the claim. Gardner v. Western Union Telegraph Co. (C. C. A.), 231 F., 405, and many other cases.

The question then is: Does the letter of July 2, 1930, by plaintiff to the defendant, constitute a filing of the claim, since it is admitted that no other claim was filed until the 60-day period had expired.

The letter relied upon by plaintiff in error, as constituting the filing of its claim, is hereinabove set out.

Plaintiff in error relies largely upon the case of Newbern v. Western Union Telegraph Co., 195 N. C., 258, 141 S. E., 592, wherein a telegram to the company’s agent, reciting that the telegraph company would be expected to reimburse plaintiff for losses sustained by error in the telegram, resulting in giving erroneous shipping instructions, was held sufficient notice to comply with the provision on the telegram requiring claims for damages to be presented in writing within sixty days after filing of message with the company for transmission. Plaintiff in error also relies on the case of Manier & Co. v. Western Union Telegraph Co., 94 Tenn., 442, 29 S. W., 732, wherein it was held that the fact that, the exact amount of damages could not be ascertained within the sixty days would not dispense with the necessity of presenting the claim within that time, as the amount of damages need not be stated in the claim in specific terms.

Plaintiff in error cites further cases in which it is claimed the letter of July 2, 1930, is, by inference, sustained as being sufficient.

Jones in his work on “Telegraph and Telephone Companies,” Section 394, page 525, gives the rule as follows: “First, the claim should be presented in writing; second, it should set forth in unmistakable terms the nature of the demand; and third, it should be presented to a proper agent of the company.”

The letter states simply that the plaintiff is advising the defendant to make a record in its office that it will enter a claim for the loss on mixed car of lettuce and peas; that if the company will investigate it will find that its office failed to deliver a wire from the Hartner Produce Company, and just as soon as its files are complete it will forward claim to defendant.

We are unable to see from an analysis of this letter any filing of a claim. What consideration could the defendant company give to> this communication? More than ninety days after the night letter of June 29th was sent to the company for transmission, a written claim was filed with the defendant company, indicating that plaintiff did not consider its letter of July 2d as the filing of a claim.

It is true it has been held that the claim filed to be valid need not state the amount of the claim, if the claim recites the nature of the claim and its extent.

In 37 Cyc., 1690, the rule is stated: “The claim must identify the message, state the negligence complained of, and the nature and extent of the damages sustained. It is not sufficient merely to give notice of the negligence complained of, 'to make complaint thereof and demand an explanation, or to give notice that a claim for damages will be made.”

To the.same effect are the cases of Blamberg Bros., Inc., v. Western Union Telegraph Co., 153 Md., 329, 138 A., 233; Manier & Co. v. Western Union Telegraph Co., supra; Western Union Telegraph Co. v. Courtney, 113 Tenn., 482, 82 S. W., 484.

As above stated, the case largely relied upon by the plaintiff in error is Newbern v. Western Union Telegraph Co., supra. But it will be noted in that case that the notice stated: “All losses sustained and all additional expenses we have had or will have in conneetion with closing this car we shall expect the Western Union to reimburse us.”

This was a clear demand to make good all losses whatever that they might suffer, and it was held to be sufficiently definite to comply with the requirement for the filing of the claim.

An examination of all the authorities leads us to the conclusion that the letter of July 2, 1930, from the plaintiff to defendant, was not a filing of a claim in compliance with the sixty-day requirement. For that reason, and for that reason alone, the judgment of the court of common pleas, affirming the judgment of the municipal court, is affirmed.

Judgment affirmed.

Ross, P. J., and Cushing, J., concur.  