North Packing & Provision Co. v. Western Union Telegraph Co.

70 Ill. App. 275

• Court: Appellate Court of Illinois
• Decided: June 14, 1897
• Status: Published

Opinions

Mr. Justice Waterman

deliveber the opinion of the Court.

The message was to be delivered in Chicago; the contract was thus to be performed there, and is to be construed in accordance with the law of Illinois. Lex loci solutiones. Leake on Contracts, 855.

The conditions upon the back of the message, not having been assented to by appellant, formed no part of the contract; the contention of appellee that its liability is limited to the sixty-two cents paid for sending the message, is not the law in this State. Tyler, Ullman & Co. v. W. U. Tel. Co., 60 Ill. 424; W. U. Tel. Co. v. Tyler, 74 Id. 168; W. U. Tel. Co. v. Harris & Comstock, 19 Ill. App. 347.

A repetition of the message would not have tended to prevent the breach of the contract by appellee.

A stipulation as to repeating a message does not protect the company from liability for damages which repetition could have no tendency to prevent. Fleischner v. Pacific Postal Tel. Cable Co., 55 Fed. Rep. 738; True v. International Tel. Co., 60 Me. 9.

“ The law imposes upon a person injured by the negligence of another the duty to make reasonable efforts to render that injury as small as possible; and it does not permit him to recover damages for any increase of loss consequent upon a failure to perform that duty.” Gray on Communication by Telegraph, Sec. 100.

This rule does not prescribe particular acts, but a line of conduct. The duty is to make reasonable efforts to render the injury as small as possible; what acts such efforts should consist of depends upon the circumstances of the case.

When appellant obtained knowledge of the negligence, the hogs were on their way to Boston; it was too late to sell them otherwise than in transit, and whether this was practicable does not appear.

When the hogs arrived, if ever, in Boston, it is probable that appellant could then have sold them in open market, and adding to their cost the expense of carriage and sale, might have thus ascertained the loss, if any there were. But was he bound to do this ?

The hogs were not purchased by appellee for sale, but to be manufactured into pork, etc. It does not appear that appellee had any reason for thinking that by at once throwing these hogs upon the Boston market the loss would have been, lessened.

What the expense of transferring them to the Boston or any other market and there selling, or what the result of so doing would have been, does not appear.

The burden of proving that a different line of conduct would have reduced damages, is upon the negligent party, appellee. Sedgwick on Damages, Vol. 1, Sec. 227; Shearman & Redfield on Negligence, Sec. 598.

If appellee had complied with its contract to promptly deliver the message, no hogs would have been bought on Tuesday, while, as instructed by the telegram, upon Wednesday the average shipment would have been purchased.

The average shipment appears to have been fifteen car loads per day.

The telegram was delivered so that but six car loads were purchased on Tuesday.

The damage to appellant is the difference in price between the six carloads bought through the negligence of appellee on Tuesday and the cost of such property on Wednesday.

That appellant could have done anything other than its agent did, suspend further purchases, to make the loss less, does not appear.

The judgment of the Circuit Court is reversed, and the cause remanded.