Postal Telegraph Cable Co. v. Akron Cereal Co.

3 Ohio C.C. (n.s.) 259

• Court: Summit Circuit Court
• Decided: January 15, 1902
• Status: Published

Opinion

Judge Boynton, in delivering the opinion for the majority of the court, announced three propositions — perhaps four.

First. That the verdict was sustained by sufficient evidence. That he held as a fact.

Then, as propositions of law, he held that the special agreement that is shown in the case, whereby the company says it will not be liable unless the message is repeated, was not binding; that the company could not relieve itself from its own negligence by that agreement; that did not relieve the telegraph company from the consequences of its own negligence.

Second. As a matter of law, Judge Boynton announces that the failure to transmit the message as delivered is prima facie evidence of negligence.

Third. As a matter of law, he holds that that message was not obscuré; that is all the propositions of law.

Judge Okey dissented in this case, and he sáid that the verdict was not supported by sufficient evidence, and taking that view of it, he then discusses what the law would be in case the verdict was not supported by sufficient evidence.

Claim was made that Cowpland, the agent of Griswold^ Company, had notice of the erroneous message, or of the fact that the message was erroneous before he bought a bushel of flax-seed. That was denied on the other side. Judge Okey says that it is clear that Cowpland did know before he bought any seed, and then he goes on and discusses what the law would be in that ease, and nothing he announces in that regard is at all at variance with the opinion of the court as delivered by Judge Boynton.

Attention is called to Ayer v. Telegraph Co., 79 Me., 493 (21 Am. & Eng. Corp. Cases, 145), where there was a mistake made in a message about some lath. Without stopping to read the case, it shows there was a contract completed between the parties, and that being true it was held that the telegraph company was liable for the mistake it made in its message.

The ease referred to in 25 Enc. Law (1st Ed.), page 890, Western Union Tel. Co. v. Shotter, 71 Ga., 760, shows that there was a contract complete between the parties; that the contract was different from what it would have been, because of the negligence of the telegraph company.

Allen & Cobbs, for plaintiff in error. Slabaugh & Seiberling, for defendant in error.

It is true that in neither of these cases was there a performance until after the mistake was known, but there was a complete contract between the parties, and that being binding, the party who lost by it held the telegraph company.

As being applicable as well to cases of this sort involving telegraph messages as to any other contracts, the rule of law seems to be such as is stated in 2 Townsend on Negligence (2d Ed., 1886), 858, par. 20, where it is said that the law, for wise reasons, imposes upon the parties subjected to injury for the breach of a contract the active duty of making reasonable exertions to render the injury as light as possible. Public interests and sound morality accord with the law in demanding that, if the injured party through negligence or willfulness, allows the damage to be unnecessarily enhanced, the increased loss justly falls upon him.

Applying that principle here, although it was not a contract as between the parties, yet there was to be some loss, at least the expense of the message, and certainly a loss to the cereal company if it was mistaken or had been led into making a contract at $164 per thousand sacks less than what the property ought to have brought, but before any contract was made and before any goods were delivered it knew of that.

Now, neither good morals, it seems to us, nor sound reason, would allow the company to go on and furnish those goods and charge it up to the telegraph company.

We think there was error in the judgment of the court below, and it is reversed, and the case remanded to the court of common pleas.