Kennon v. Western Union Telegraph Co.

92 Ala. 399

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

McOLELLAN, J.

As we construe the-amended counts of the complaint, they each sufficiently aver that the plaintiffs through their agents in New York made a contract with the defendant to transmit a message from the agents to their principals at Salem, Alabama, with diligence, and dispatch for a reward then and there paid by the agents for the principals, and subsequently repaid by the latter to -the former; and that the defendant violated said contract in that it missent the message and failed to transmit and deliver it to plaintiffs for several days after it received the same for transmission and should have transmitted and delivered it. On the contract thus alleged, these plaintiffs may sue, and, if the evidence develops that they were disclosed to the telegraph company as the principals in the contract, they may recover against the defendant.—G. C. & S. S. Rwy. Co. v. Levy, 43 Am. Rep. 278; Hookness v. W. U. T. Co., 5 Am. St. 672; West v. W. U T. Co., 7 Am. St. 520; W. U. T. Co. v. Broesche, 13 Am. St. 843; Daugherty v. A. U. Tel. Co., 75 Ala. 168.

The breach alleged entitles the plaintiffs to recover at least the reward paid by or for them for the transmission of the message, and, eliminating this element, they would still- be entitled to recover nominal damages.—W. U Tel. Co. v. Way, 83 Ala. 542, 562-3; W. U. Tel. Co. v. Henderson, 89 Ala. 510, 518; Daugherty v. A. U. Tel. Co., 75 Ala. 168, 171.

It-follows that, whether the plaintiffs were entitled to recover the damages alleged to have resulted to them from the decline in the price of cotton between the time the dispatch should have been delivered to them and the time at which they ordered the sale of one thousand bales, the averment being that the order would have been given upon the instant of receiving the message, and was delayed three days in consequence of its non-receipt, or not, the demurrers to the amended complaint should have been overruled. Not only do those demurrers fail as matter of law to answer the whole complaint so as to raise any question as to the right thereunder to recover nominal damages and the price of the message, except in so far as to assert what we have determined to be the untenable proposition that the action proceeds in the names of the wrong-parties, but they are confessedly addressed only “to so much of each of said counts, respectively, as seeks a recovery beyond the price of the- telegram.” Causes can not be determined by piecemeal on demurrer. The 'pleader must answer the whole complaint and for all purposes when he resorts to this mode of defense. When the cause of action is sufficiently stated to-authorize a recovery, in this form of action counting on a single breach of contract, of any damages, a partial defense, going to a denial of the right to recover a part of the damages-claimed, must be availed of and effectuated by motion to strikeout the objectionable averments, or by objections to evidence, and through instructions to the jury.—Daugherty v. A. U. Tel. Co., 75 Ala. 168. We are not to be understood as intimating any opinion as to whether the special damages, resulting from the decline in cotton pending the delay of an order to sell, alleged to have been consequent upon the failure of defendant to promptly deliver the telegram, are recoverable. That question is not properly before us.

The' court erred in sustaining the demurrers to the amended complaint, and in rendering final judgment against plaintiffs,. Said judgment is reversed and the cause remanded.