Lumpkin, J.
(After stating the foregoing facts.) The court may direct the jury to find for the party entitled thereto, where there is no conflict in the evidence, and where that introduced, with all reasonable deductions and inferences therefrom, demands a particular verdict. Civil Code, § 5331. Unless this state of facts exists, a verdict:should not be directed, but the jury should be left to pass on the issues. In this case there were two leading .questions: Did the parties ever arrive at a valid, binding contract ; and, if so, was there a rescission or release from the original terms by mutual consent or agreement ? The first question may be divided into two subordinate parts: First, when the telegraphing agent made a mistake in transmission, and Brinson correctly offered to the plaintiffs the rate as received by him, considering what had transpired previously and also at that tiiqe, did the plaintiffs accept this rate and make a contract whereby they agreed to have the troops transported over the defendant’s road and the defendant agreed to so transport them ? Second, if there was such an acceptance by the plaintiffs in good faith and without notice of any mistake, was it binding on the company, or was the defendant relieved by reason of the mistake in the transmission of its message ? The first of these last-mentioned questions is one of fact; the second, one of law. On the subject of acceptance, the evidence for the plaintiffs was to the effect that when Brinson quoted the proposed rate to them they accepted it. Nevertheless they wrote to Haile, asking him to agree for them to pay one half of the amount in cash and the balance later; and though he declined this, they succeeded in getting Brinson to treat the matter as if they had made some deposit, when in fact they had made none until after they were notified of the mistake. It is true that Haile’s telegram to Brinson says, “Endeavor secure deposit,” etc. But his letter |o plaintiffs, dated December 2, required prepayment. The first check which was given to Brinson bore date on its face December 2, though in fact it appears not to have been given until Friday, December 4. Brinson denied flatly, in one part of his testimony, that the rate- quoted by him was accepted, or that he understood that a contract was then made; while elsewhere he said that the plaintiffs had told him they would give him “ the movement ” if he could quote as low a Tate as others, and that when he did inform them of Haile’s tele[372]*372gram naming the rate they expressed themselves pleased with it. His testimony, considered in connection with the letters above referred to, makes it by no means absolutely certain that any contract was consummated, so as to authorize the direction of a verdict. If his statement be correct, that the plaintiffs merely said that the rate was low, or was satisfactory, or the like, did the plaintiffs, in the light of all the evidence, bind themselves to make the shipment at that rate ? Whether or not there was an acceptance and a completion of a contract should have been left to the jury. If the rate stated in the telegram received by Brinson was correctly communicated by him to the plaintiffs, and they accepted it and closed the contract at that rate, and were not in a position where they knew or ought to have known of the mistake, would the railroad company be bound by the contract, or would it be relieved by reason of the mistake made in the transmission of the message of its general agent ? Two opposing views on this subject are • entertained by the courts, which are respectively very well stated in the opinion of the majority, and in the dissenting opinion of Clark, J., in the case of Borden v. Richmond & D. R. Co., 113 N. C. 570. The views of the majority of the court are expressed in the headnotes of that case as follows: “ 1. Where there has been no misrepresentation, and where there is no ambiguity in the terms of the contract, a party to it can not be allowed to evade the performance of it by the simple statement that he has made a mistake. If, however, a proposal by one evidently contains a mistake, the other can not, by snapping at it, be permitted to take advantage of the error. 2. Where a local freight agent of- a defendant railroad company made a written order to ship cotton between two points at 69 1/2 cents per hundred for plaintiff, who at once, and in writing, accepted the offer, and it was conceded that the said local agent was authorized to make such proposal on the part of the defendant, and the agent plainly and unequivocally expressed what he understood to be the price to be charged for carrying cotton, and there was no misunderstanding between, the plaintiff and the agent as to any of the terms of the alleged contract; and it appears that, by an error in the transmission of a telegram from the general freight agent to the local agent, ‘89 1/2’ was changed to ‘69 1/2’: Held, (1) that the contract was binding on defend[373]*373ant company, notwithstanding the mistake; (2) that in an action by the shipper (who had paid the larger rate under protest) to recover the difference between the two rates, all evidence in regard to plaintiff’s purchase of cotton was irrelevant, and plaintiff was entitled to recover.” But in the case of Hartford R. Co. v. Jackson, 24 Conn. 514, a rate was named by an agent of a railroad, who understood the shipper to say that there were.one hundred bundles of laths, when in fact the latter said five hundred bundles. It was held that the railroad company was not bound. In Gulf C. & S. R. Ry. Co. v. Dawson (Texas Civ. App.), 24 S. W. 566, where a shipper informed the agent of a railway company of the character of the fruit shipped, but the latter misunderstood him and quoted a rate_under a mistake as to the character of the shipment, it was held that the parties did not assent to the same thing at the same time, so as to constitute a binding contract. See also Rowland v. New York etc. R. Co., 61 Conn. 103, 23 Atl. 755.
This court has held, that in the transmission of a telegraphic message the telegraph company is the agent of the sender; and that if an offer is made by telegram, and, as delivered to the addressee, is materially different from the telegram delivered for transmission, and is accepted, the sender is bound by the terms of the proposal as contained in the telegram delivered to the addressee. Western Union Tel. Co. v. Flint River Lumber Co., 114 Ga. 576; Brooke v. Western Union Tel. Co., 119 Ga. 694. These decisions are based on the ground that the telegraph company is the agent of the sender in transmitting the message. If this be true of an independent company to whom a message is delivered for transmission, we can perceive no reason why the case would be different if the telegraphing were done by a company or operators under the control of the railroad, in transmitting a message to an agent who dealt directly with the plaintiffs. The evidence states that the telegram sent by Haile to Brinson was filed “in the railroad telegraph office” in Savannah, which we understand to mean a telegraph office under control of the railroad company. There is no doubt, as Mr. Justice Cobb points out in the Flint River Lumber Company case, that if the status of a telegraph company is to be considered from the standpoint of agency, some very strong reasoning car be adduced to sustain the [374]
Free access — add to your briefcase to read the full text and ask questions with AI
Lumpkin, J.
(After stating the foregoing facts.) The court may direct the jury to find for the party entitled thereto, where there is no conflict in the evidence, and where that introduced, with all reasonable deductions and inferences therefrom, demands a particular verdict. Civil Code, § 5331. Unless this state of facts exists, a verdict:should not be directed, but the jury should be left to pass on the issues. In this case there were two leading .questions: Did the parties ever arrive at a valid, binding contract ; and, if so, was there a rescission or release from the original terms by mutual consent or agreement ? The first question may be divided into two subordinate parts: First, when the telegraphing agent made a mistake in transmission, and Brinson correctly offered to the plaintiffs the rate as received by him, considering what had transpired previously and also at that tiiqe, did the plaintiffs accept this rate and make a contract whereby they agreed to have the troops transported over the defendant’s road and the defendant agreed to so transport them ? Second, if there was such an acceptance by the plaintiffs in good faith and without notice of any mistake, was it binding on the company, or was the defendant relieved by reason of the mistake in the transmission of its message ? The first of these last-mentioned questions is one of fact; the second, one of law. On the subject of acceptance, the evidence for the plaintiffs was to the effect that when Brinson quoted the proposed rate to them they accepted it. Nevertheless they wrote to Haile, asking him to agree for them to pay one half of the amount in cash and the balance later; and though he declined this, they succeeded in getting Brinson to treat the matter as if they had made some deposit, when in fact they had made none until after they were notified of the mistake. It is true that Haile’s telegram to Brinson says, “Endeavor secure deposit,” etc. But his letter |o plaintiffs, dated December 2, required prepayment. The first check which was given to Brinson bore date on its face December 2, though in fact it appears not to have been given until Friday, December 4. Brinson denied flatly, in one part of his testimony, that the rate- quoted by him was accepted, or that he understood that a contract was then made; while elsewhere he said that the plaintiffs had told him they would give him “ the movement ” if he could quote as low a Tate as others, and that when he did inform them of Haile’s tele[372]*372gram naming the rate they expressed themselves pleased with it. His testimony, considered in connection with the letters above referred to, makes it by no means absolutely certain that any contract was consummated, so as to authorize the direction of a verdict. If his statement be correct, that the plaintiffs merely said that the rate was low, or was satisfactory, or the like, did the plaintiffs, in the light of all the evidence, bind themselves to make the shipment at that rate ? Whether or not there was an acceptance and a completion of a contract should have been left to the jury. If the rate stated in the telegram received by Brinson was correctly communicated by him to the plaintiffs, and they accepted it and closed the contract at that rate, and were not in a position where they knew or ought to have known of the mistake, would the railroad company be bound by the contract, or would it be relieved by reason of the mistake made in the transmission of the message of its general agent ? Two opposing views on this subject are • entertained by the courts, which are respectively very well stated in the opinion of the majority, and in the dissenting opinion of Clark, J., in the case of Borden v. Richmond & D. R. Co., 113 N. C. 570. The views of the majority of the court are expressed in the headnotes of that case as follows: “ 1. Where there has been no misrepresentation, and where there is no ambiguity in the terms of the contract, a party to it can not be allowed to evade the performance of it by the simple statement that he has made a mistake. If, however, a proposal by one evidently contains a mistake, the other can not, by snapping at it, be permitted to take advantage of the error. 2. Where a local freight agent of- a defendant railroad company made a written order to ship cotton between two points at 69 1/2 cents per hundred for plaintiff, who at once, and in writing, accepted the offer, and it was conceded that the said local agent was authorized to make such proposal on the part of the defendant, and the agent plainly and unequivocally expressed what he understood to be the price to be charged for carrying cotton, and there was no misunderstanding between, the plaintiff and the agent as to any of the terms of the alleged contract; and it appears that, by an error in the transmission of a telegram from the general freight agent to the local agent, ‘89 1/2’ was changed to ‘69 1/2’: Held, (1) that the contract was binding on defend[373]*373ant company, notwithstanding the mistake; (2) that in an action by the shipper (who had paid the larger rate under protest) to recover the difference between the two rates, all evidence in regard to plaintiff’s purchase of cotton was irrelevant, and plaintiff was entitled to recover.” But in the case of Hartford R. Co. v. Jackson, 24 Conn. 514, a rate was named by an agent of a railroad, who understood the shipper to say that there were.one hundred bundles of laths, when in fact the latter said five hundred bundles. It was held that the railroad company was not bound. In Gulf C. & S. R. Ry. Co. v. Dawson (Texas Civ. App.), 24 S. W. 566, where a shipper informed the agent of a railway company of the character of the fruit shipped, but the latter misunderstood him and quoted a rate_under a mistake as to the character of the shipment, it was held that the parties did not assent to the same thing at the same time, so as to constitute a binding contract. See also Rowland v. New York etc. R. Co., 61 Conn. 103, 23 Atl. 755.
This court has held, that in the transmission of a telegraphic message the telegraph company is the agent of the sender; and that if an offer is made by telegram, and, as delivered to the addressee, is materially different from the telegram delivered for transmission, and is accepted, the sender is bound by the terms of the proposal as contained in the telegram delivered to the addressee. Western Union Tel. Co. v. Flint River Lumber Co., 114 Ga. 576; Brooke v. Western Union Tel. Co., 119 Ga. 694. These decisions are based on the ground that the telegraph company is the agent of the sender in transmitting the message. If this be true of an independent company to whom a message is delivered for transmission, we can perceive no reason why the case would be different if the telegraphing were done by a company or operators under the control of the railroad, in transmitting a message to an agent who dealt directly with the plaintiffs. The evidence states that the telegram sent by Haile to Brinson was filed “in the railroad telegraph office” in Savannah, which we understand to mean a telegraph office under control of the railroad company. There is no doubt, as Mr. Justice Cobb points out in the Flint River Lumber Company case, that if the status of a telegraph company is to be considered from the standpoint of agency, some very strong reasoning car be adduced to sustain the [374]*374position that the minds of the parties never met, and that there was in fact no binding contract; and also that this falls within the rule that a special agent who is directed to communicate á particular message or do a particular thing has no authority to deliver another message or do some other thing so as to make a binding contract for his principal. Civil Code, § 3023. But we think that the telegraph cases above referred to in principle bear strongly on this point. •' And we must take position with the majority of the Supreme Court of North Carolina in the Borden case. If, however, the plaintiffs had known, or from all the circumstances should have known, that the rate quoted to them was a mistake, they could not have seized upon an evident mistake to take an unfair advantage of the other party. Shelton v. Ellis, 70 Ga. 297; Singer v. Grand Rapids Match Co., 117 Ga. 86. Courts can not relieve from bad contracts or hard bargains, where they have been deliberately made, and where there has been no fraud or deceit, and the terms of the contract are clear and unambiguous. If a man puts a low price upon his property and it is accepted, he can not escape from the contract on the ground that he ought to have charged more. This is not the character of mistake which furnishes a ground for relief in equity. Alexander v. Herring, 54 Ga. 200. Nor does mere ignorance of a fact by both parties do so. Civil Code, § 3985. Nevertheless the law oft this State does recognize a difference between reforming a contract, and executing a contract in case of a mistake. To authorize a reformation of a contract on the ground of mistake, such mistake must be mutual; but the courts may decline to enforce the execution of a contract, if the mistake is confined to the party refusing, provided it is such a mistake as furnishes a good defense, and it can be corrected without injustice to the other party, and. the party seeking the rescission or asserting the mistake has not been guilty of such negligence or laches as to prevent his doing so. On the subject of mistake as furnishing a basis for defense, or for equitable relief, see Civil Code, §§ 3535, 3660, 3981, 3982, 3983, 3984, 3985, 3974; Stix v. Roulston, 88 Ga. 743; Singer v. Grand Rapids Match Co., 117 Ga. 86, supra; Werner v. Rawson, 89 Ga. 619; Jossey v. R. Co., 109 Ga. 439, 447 (discussing the Werner case and section 3974 of the Civil Code); Keeth v. Brewster, 114 Ga. 176; Atlanta Trust & [375]*375Banking Co. v. Nelms, 116 Ga. 915, 923; Corner v. Grannis, 75 Ga. 277 (in which case rescission of an executed contract was denied); DuBignon v. Mayor, 106 Ga. 317; Dyer v. Walton, 79 Ga. 466.
If a binding contract was entered into between the plaintiff and the defendant, the latter could not rescind without the assent of the former. One party to a contract can not rescind it by mere notice to the other. Oklahoma Vinegar Co. v. Carter, 116 Ga. 140. But rescission may be had by mutual consent. There was no express statement that the original contract should be rescinded or changed; but the evidence was conflicting as to what transpired and as to the conduct of the parties. If there was a valid, binding contract, but the parties consented to a correction so as to make it conform to the telegram sent, whether this would amount to a technical novation, with the requisites thereof, does not require decision at this time. The issues as to whether or not there was an acceptance and the making of a contract, and whether or not there was an assent to a rescission or change from the rate first quoted, were made by the pléa. The question whether there was knowledge of the mistake on the part of the plaintiffs and an effort to seize on the mistake to take an unfair advantage was suggested in the briefs, but was not made in the plea filed.
Judgment reversed.
All the Justices concur, except Simmons, C. 171, absent.