
    Western Union Telegraph Company v. Patty Dry Goods Company.
    [51 South. 913.]
    Telegeaph Company. 'Non-delivery of message. Damages. Speculative not recoverable.
    
    
      A plaintiff who, having received a letter offering to rent him a. storehouse, replied by telegram, “We want building, hold same, letter by mail,” cannot recover of the telegraph company for nondelivery of the message, the costs for its transmission having been refunded or tendered, since the contract would have remained incomplete had the message been delivered and speculative damages will not be awarded.
    Prom the circuit court of Noxubee county.
    Hon. John L. Buckley, Judge.
    The dry goods company, appellee, was plaintiff in the court, below; tbe telegraph company, appellant, was defendant there.. Prom a judgment in plaintiff’s favor, predicated of a peremptory instruction, defendant appealed to the supreme court. The defendant tendered plaintiff the costs for transmitting the message and kept its tender good by paying the money into-court. The other facts are stated in the opinion of the court.
    
      Bozeman & Fewell, for appellant.
    The damages proven or sought to- be proven by the plaintiff were the purest speculation and could not under the circumstances of this case be recovered in this suit.
    The peremptory instruction to find for the defendant should have been granted by the court, because the damages sought to be recovered were not contemplated by the parties. The evidence was that nothing was said to the operator when the message was delivered to bim witb reference to its importance. Tbe decision on tbis proposition cannot be misunderstood, and tbe question is not open for argument in tbis state. Telegraph ■Go. v. Clifton, 68 Miss. 307; Jacobs v. Postal Telegraph Co., 76 Miss. 278; Johnson’s case, 79 Miss. 60.
    “Tbe damages to be recoverable must be sucb as can fairly be said to have entered into tbe contemplation of tbe parties -at tbe time of the making of tbe contract.”
    It cannot be said from tbis record that any sucb damages as were claimed in tbis case were sucb “as could be fairly presumed to have entered into tbe minds of tbe parties, both parties, at tbe time of tbe filing witb tbe agent of tbe company tbe telegram.”
    Tbis case falls squarely into tbe principle that there was •only a possibility or probability of a contract. There was ■no binding contract made-by tbe telegram in question. Note tbe terms of same: “We want building, bold same, letter by mail.” Is tbis an unqualified acceptance of any proposition ■of itself. Wbat was tbe proposition? Was tbe proposition made known to tbe telegraph company? Was tbe proposition submitted by telegraph and thus put tbe company on notice ? We say not. Nothing appears in tbe evidence by which it •could even be inferred that tbe company knew of any proposition.
    “We want building; bold same; letter by mail.” Was there something else to be done before either party could have maintained an action on tbe contract in event same bad been delivered ? There had to be an acceptance, unconditionally. 'This telegram speaks of a “letter by mail,” Doesn’t tbis of itself show that there was a something else to be done or left •open ? Why should a letter be mailed if tbis telegram of itself affected and closed a binding contract, enforceable contract between tbe parties ?
    
      Tliis letter referred to as “letter by mail,” shows that no "binding contract was intended to be made by the telegram in -question.
    And then later, to wit, on the 16th day of May thereafter another telegram was sent by the plaintiffs here, which indicates that they did not understand that a contract, full, complete, and binding, had been made in their telegram of the 9th 'instant. Telegraph Go. v. Adams, 92 Miss. 849, 47 South. ■412. •
    
      T. W. BrOme, for appellee.
    It is contended that the telegraph'company certainly would not have been informed by the wording of the message as to its importance, and for that reason are not liable. We submit that any telegram which recites the following language: “We want building, hold same, letter by mail,” surely was sufficient •of 'itself to show that it was an important telegram. “We want building, hold same” would show that the sender was anxious to procure the building, and by sending a telegram it would indicate that they wanted to inform the sendee at once, without delay, that they wanted the building, and that they wanted the sendee to hold it for them, and that they were not willing to .risk the delay of a letter by ordinary mail, and ■sought the company’s agent with a view of taking advantage •of quick facilities of transporting the message of so much importance, as quickly as possible. But it is contended that there •can be no recovery in this ease because this message was not an unqualified acceptance of any proposition made to the sender hy the sendee. In the case of Western Union Telegraph Go. v. Adams Machine Go., 92 Miss, 849, 47 South. 412, the court said that the difference between that case and the Alexander' •case is, that Mr. Alexander telegraphed, and the telegram was such a telegram as would have held Alexander to the trade. Now, take this telegram: “We want building, hold same.” Isn’t that sufficient to have held the Patty Dry Goods Company to a contract to take that building ? Mounts thought so.. Mounts says that he would not have rented the building but. have held the same for the Patty Dry Goods Cbmpany.
   SMItii, J.,

delivered the opinion of the court.

This is an appeal from judgment in the court below awarding appellee damages, alleged to have been sustained ■ by it, by reason of the failure of ajopellant to deliver a telegram sent by appellee.

Appellee was a corporation engaged in a mercantile business at Macon, Miss., and intended to move to the state of' Oklahoma and engage in a similar business there. On May 5, 1907, appellee received the following letter from Stinson & Mounts, a partnership engaged in the real estate business in Frederick, Okla.:

“Mr. It. C. Patty, Macon, Miss. “May 5, 1907.
“D'ear Sir: Tour letter, addressed to Mr. N. J. Kato> handed to us for attention. Mr. Nato requested us to advise you that he would be unable to put up1 the building that you would desire. We have a building now under construction, which will be completed within the next fifteen or twenty days, 27%x90 ft. It is the block just west of Mr. Nato’s property, which would be three doors from the corner, the First National Bank being the corner building. That we can rent you for $75 per month. This is well-located property, and, if you desire same, advise us by telegram upon receipt of this letter, and we will hold same until you can make a trip1 of investigation. Several parties are wanting this building, but we will wait until we hear from you before closing a qpntract. We enclose you herewith a diagram showing the location of this property relative to the property of Mr. It. J. Nato. We trust that we will hear from you immediately. We are, yours truly,
“Stinson & Mounts.”

In reply to tbis letter appellee delivered to appellant’s agent at Macon, Miss., a telegram addressed to Stinson & Mounts, which telegram was never delivered to the said Stinson & Mounts. The telegram read as follows:

“Macon, Miss., 5 — 9—07. Stinson & Mounts, Frederick, Oklahoma. We want building; hold same*; letter by mail.
“R. C. Patty.”

R. 0. Patty was a member of appellee corporation, and this telegram was signed by him for and at the request of said corporation.

The letter referred to in the telegram, and which was duly mailed and received by Stinson & Mounts, was as follows:

“Macon, Miss., May 9, 1907.
“Stinson & Mounts, Frederick, Okla.
“Dear Sirs: We beg to acknowledge receipt of your valued favor of the 5th inst., in which you offer us the refusal of your store building to be furnished about the 1st of June. We immediately telegraphed you we wanted the building and desired you to hold same for us. You failed to inclose diagram of location, but we think we remember pretty well the location. We suppose the $75 per month rental means a completed store, with modern shelving and counters, ready for occupancy, etc. We would like to suggest one thing, and that is the inside painting be all pure white. We shall expect the rent to begin August 1st., if all things shall be in readiness for us, and agreeable to you. Hoping to hear from you, and to know the deal is closed, yours truly.
“Patty D. G-. Company.”

When the letter was received, Stinson & Mounts had disposed of the building, and it became necessary for appellee to secure another building, thereby incurring certain alleged expense and damage. At the close of the evidence the court refused to grant appellant a peremptory instruction, but granted one for appellee. Had this telegram been delivered, no contract for tbe building would thereby have been completed, and, for that matter, no such contract was completed by the letter which followed the telegram. The case, therefore, falls squarely within the principle announced in W. U. Tel. Co. v. Adams Mach. Co., 92 Miss. 849, 47 South. 412, and the peremptory instruction requested by appellant should have been given.

Reversed and remanded.  