
    No. 544
    ANNARINO v. POSTAL TEL. CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1658.
    Decided March 15, 1926
    355. DAMAGES — To entitle buyer to damages, where it is made impossible for Mm to accept offer of seller due to delay in delivering telegram, not necessary that buyer go into open market and purchase goods.
   RICHARDS, J.

Charles Annarino- brought the original action in the Lucas Common Pleas Court for the purpose of recovering damages claimed to have resulted from delay in the delivery of a telegraph message by the Postal Telegraph Cable Co.

Annarino resided in Toledo and the telegram was filed at the Company’s office in Cincinnati between 5:09 and 5:27 o’clock P. M. The telegram gave Annalrino preference in the right to purchase a certain carload of fruit and required an immediate answer. The telegram was delivered at 7:30 o’clock the next morning, and Annarino immediately accepted the offer but was later informed he was too late.

The trial court directed a verdict in favor of the Company and Annarino prosecuted error The Court of Appeals in reversing the judgment of the lower court held:

1. The directed verdict for the company can not justly be based on the claim that the telegram, as a matter of law, was seasonably delivered.
2. The message itself called for an immediate answer and Annarino offered to prove that prior to the date of this message the Company had delivered other messages which had arrived after business hours.
3. The directed verdict seems to have been based on the contention made by the Company that Annarino had no cause of action unless he had purchased other goods of the same quality in the open market.
4. No such duty rested on Annarino since the measure of damages is fixed by 8447 GC. paragraph 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 Annarino did or did not purchase other fruit on the market.

Attorneys — Fritsche, Kruse & Winchester, for Annarino; Marshall, Melhorn, Harlar & Martin for Postal Co.; all of Toledo.

Judgment reversed.  